The Conservative Case for Judicial Retention
Nicholas Johnson
The Gazette
October 17, 2010, p. A17

Federalists, constitutional originalists, Tea Party members, and other true conservatives will vote to retain Iowa's Supreme Court justices.


Because they are steeped in American history.

They believe the founders' intentions are as valid today as they were more than 200 years ago. They honor and follow the Constitution our founders wrote and ratified.

Many conservatives are members of the Federalist Society -- a self-identified "group of conservatives and libertarians interested in the current state of the legal order." It is rational for them, when interpreting the Constitution, to look to The Federalist Papers, some 85 essays you may recall from high school civics.

During 1787 and 1788, Alexander Hamilton, James Madison and John Jay published those essays. They represent their effort to promote ratification of the U.S. Constitution -- a Constitution conservatives want to read literally. Today, when lawyers and judges try to do that, The Federalist Papers remain among the best evidence of the original intent of the drafters, and what our Constitution meant to them.

It fell to Alexander Hamilton to explain the court system in general and the rationale for the life tenure, retention and removal of judges in particular. His essay, "The Judiciary Department," is "Federalist No. 78."

There are those today who do not agree with conservative values.

There were "anti-Federalists" in Hamilton's time, too. Their essays make up "The Anti-Federalist Papers." One author, New York Judge Robert Yates, wrote under the name "Brutus." In the spring of 1788, he authored a series of essays ("Anti-Federalist" Nos. 78-84) in the New York Journal.

Liberal Yates recognized the need for judges' independence from the legislative and judicial branches. But he believed the Constitution provides too much independence, such as the life tenure for "good behavior" (Art. III, Sec. 1), and removal by impeachment only for "treason, bribery, or other high crimes and misdemeanors" (Art. II, Sec. 4).

Judges need to be responsible to "some superior power," he argued. This would not be a direct vote of the people. In his day even senators were not to be directly elected (Art. I, Sec. 3).

Instead, he proposed removal of judges be done by "some supreme . . . body of men, who depend upon the people for their places" - presumably a popularly elected body of some kind.

Federalist Hamilton responded to Yates in June 1788. He did not believe judges should be removed when voters disagree with individual opinions.

Judges need protection from legislators and the people.

Conservative Hamilton believed an independent judiciary is "one of the most valuable of the modern improvements in the practice of government ... [a] barrier to the encroachments and oppressions of the representative body ... the best expedient ... to secure a steady, upright, and impartial administration of the laws ... to keep the [legislature] within the limits [of the Constitution]." Independent judges can also restrain "serious oppressions of the minor party in the community ... an essential safeguard against the effects of occasional ill humors in the society ... as no man can be sure that he may not be tomorrow the victim of a spirit of injustice."

Conservatives know that Hamilton's principle, and rationale, for independent federal judges in 1788 is equally applicable for independent Iowa judges in 2010.

They agree with Hamilton that impeachment or a vote against "retention" of a judge should not turn on approval of the outcome from a judge's individual opinions.

Conservatives will vote to retain Iowa's judges because they are patriotic, honorable and consistent conservatives who love this country, respect its Constitution, and the wisdom of those who wrote, fought for and ratified it.
Nicholas Johnson, a former Federal Communications Commissioner, teaches at the University of Iowa College of Law.