Challenges to the
Independence of the Judiciary:
A Case Study of the Removal
of Three Judges in Iowa
December 2013
Report of the International Bar Association’s Human Rights Institute (IBAHRI) with
the research assistance of IBAHRI interns Gabriela Maldonado and Juan M Zarama
Material contained in this report may be freely quoted or reprinted,
provided credit is given to the International Bar Association
International Bar Association
4th Floor, 10 St Bride Street
London EC4A 4AD, United Kingdom
Tel: +44 (0)20 7842 0090
Fax: +44 (0)20 7842 0091
Website: www.ibanet.org
Contents
Introduction4
Chapter One: Principles and Standards Relating to the
Independence of the Judiciary6
1.1 Independence of the judiciary and the right to a fair trial6
1.2 The Basic Principles on the Independence of the Judiciary8
1.3 Methods of judicial selection10
Chapter Two: Judicial Selection in the United States12
2.1 Methods of judicial selection in the United States 12
2.2 States where judicial selection involves popular vote13
2.3 Judicial tenure in states with judicial selection or retention elections15
Chapter Three: Critique of Judicial Selection Through
Popular Vote18
3.1 The non-interference principle19
3.2 The non-discrimination principle20
3.3 The principle of secure tenure21
Chapter Four: Campaigns Against Judges in Iowa22
4.1 Politicised elections and threats to the independence of the judiciary23
4.2 The role of the bar associations24
Conclusions and Recommendations27
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa3
Introduction
This report has been prepared by the International Bar Association’s Human Rights Institute
(IBAHRI) following a resolution proposed by The Honourable Michael Kirby and seconded by
Mark Stephens during the IBAHRI Council meeting held at the IBA Annual Conference in Dublin
on 1 October 2012. In particular, the IBAHRI Secretariat was asked to consider:
‘whether the constitutional provisions of states in the United States of America, which allow for
electoral participation on the appointment, retention and removal of judges, are compatible with
the judicial office itself and human rights law; and whether the actions taken by the Iowa State Bar
Association and by the American Bar Association before, during and following the ballot aforesaid
were adequate and appropriate having regard to the special interest and duty of representative
bodies of the legal profession to defend judicial independence and integrity.’
The request was initiated following concerns about the impact on the independence of the judiciary
of the removal from office of Marsha K Ternus, Chief Justice of the Supreme Court of Iowa, and
Justices Michael J Streit and David L Baker. The three judges were removed in a retention election in
December 2010, largely in reaction to decisions made earlier in their judicial capacity.
To answer these concerns the IBAHRI has prepared the following report and made some
recommendations. This report is divided into four chapters. The first chapter characterises the
international principles and standards on the independence of the judiciary as set forth in human
rights treaties, declarations and other related instruments. This chapter in particular analyses the
general principles and guidelines established in the 1985 Basic Principles on the Independence of
the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders. The analysis is focused mainly on the methods of selecting, retaining or
removing judges as a precondition to guaranteeing judicial independence and impartiality.
The second chapter analyses judicial selection in the United States. In order to obtain a clear picture
of the judicial electoral system, this section explains the different methods of judicial selection at
the federal and state level. Considering that concerns about the independence of the judiciary
arose particularly with regard to the appointment, retention and removal of judges through popular
elections, the chapter focuses in depth on the states with constitutional provisions that enshrine
this type of election. These provisions are analysed and the states are classified into three groups
according to the electoral method used. Finally, this chapter describes the differences in judicial
tenure among those states with selection methods involving some type of popular election. The
method of selection and judicial tenure are related as judicial independence relies on both an
appropriate method of selection as well as a secure term of office.
The third chapter canvasses concerns about judicial selection through a popular vote. Taking into
account the content of constitutional provisions, this chapter discusses whether these provisions are
inconsistent with the Basic Principles on the Independence of the Judiciary. It is argued that the
appointment, retention or removal of judges through popular elections violates the principles of noninterference, non-discrimination and security of tenure, and is detrimental to the independence and
impartiality of judges, consequently jeopardising the rule of law.
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Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
The fourth chapter analyses the retention elections that took place in Iowa in 2010, where the Chief
Justice and two other justices of the Supreme Court of Iowa were removed from office. These results
were attributed to a decision made unanimously by the Iowa Supreme Court in April 2009 in favour
of gay marriage. The chapter highlights: the politicisation of the elections; the threat this poses to
the independence of the judiciary; and the roles the Iowa State Bar Association and American Bar
Association played in the elections.
Finally, this report makes conclusions and recommendations in respect of the above matters,
emphasising that judges should be appointed and retained on the basis of their professional
qualifications and through a transparent procedure. As a Washington Post editorial argued, judges
‘should not be swayed by the political whims of the day’.1
1
‘Firing Judges’, Washington Post (5 November 2010) A20.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa5
Chapter One: Principles and Standards
Relating to the Independence of the
Judiciary
The independence of the judiciary is a principle recognised in international treaties and can be
argued to be part of customary international law. It is contained in all international human rights
treaties and declarations that refer to a right to a fair trial before an independent and impartial court
or tribunal, and derives from the basic principles of the rule of law and the separation of powers.
1.1 Independence of the judiciary and the right to a fair trial
The Universal Declaration of Human Rights, adopted by the United Nations (UN) General Assembly
in 1948, recognises that ‘[e]veryone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him’.2 This provision, embodying the independence of the judiciary as a
precondition to guarantee the right to a fair trial, was included in the International Covenant on Civil
and Political Rights (ICCPR),3 now signed and ratified by 154 states.
The ICCPR stipulates in Article 14(1) that, ‘in the determination of any criminal charge against him,
or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal established by law’. According to the Human
Rights Committee,4 the body monitoring State compliance with the Covenant, the right to be tried
by an independent and impartial tribunal ‘is an absolute right that may suffer no exception’.5 This
provision was also restated in the UN Basic Principles on the Role of Lawyers6 (on the right to legal
representation) and the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families.7
On a regional level, human rights systems have included similar provisions to establish the
precondition of the independence of the judiciary as a means to guarantee a right to a fair trial. In
the Inter-American System, Article 8(1) of the American Convention on Human Rights provides
that ‘every person has the right to a hearing, with due guarantees and within a reasonable time, by a
2
UN General Assembly, ‘Universal Declaration of Human Rights’, 10 December 1948, 217 A (III), Article 10. Available at: www.unhcr.org/
refworld/docid/3ae6b3712c.html. All URLs throughout last accessed 15 November 2012 unless otherwise specified.
3
UN General Assembly, ‘International Covenant on Civil and Political Rights’, 16 December 1966, United Nations, Treaty Series, vol 999,
171, available at: www.unhcr.org/refworld/docid/3ae6b3aa0.html.
4
The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and
Political Rights by its State parties. See: Office of the United Nations High Commissioner for Human Rights, ‘Human Rights Committee’.
Available at: www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx .
5
Human Rights Committee, Communication No 263/1987, M Gonzalez del Río v Peru (Views adopted on 28 October 1992), UN document
CCPR/C/46/D/263/1987 (Jurisprudence), para 5.2.
6
‘Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence, the
right to a fair and public hearing by an independent and impartial tribunal, and all the guarantees necessary for the defence of everyone
charged with a penal offence.’ Second preambular paragraph, ‘UN Basic Principles on the Role of Lawyers’, Adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. Available at:
www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx.
7
Article 18(1) states that: ‘[m]igrant workers and members of their families […] shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law’. UN General Assembly, International Convention on the Protection of the Rights of
All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158. Available at: www.un.org/documents/ga/res/45/
a45r158.htm.
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Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
competent, independent, and impartial tribunal, previously established by law, in the substantiation
of any accusation of a criminal nature made against him or for the determination of his rights and
obligations of a civil, labour, fiscal, or any other nature’.8 This provision was also included in the
American Declaration of the Rights and Duties of Man.9
With similar terms in the African human rights system, Article 7(1) of the African Charter on Human
and Peoples’ Rights provides that ‘every individual shall have the right to have his cause heard’, a
right that comprises ‘the right to be presumed innocent until proved guilty by a competent court
or tribunal’ and ‘the right to be tried within a reasonable time by an impartial court or tribunal’.10
This Article should be read in conjunction with Article 26 of the Charter, which establishes that the
States parties ‘shall have the duty to guarantee the independence of the Courts’. In addition, the
African Commission on Human and Peoples’ Rights adopted in 1996 a resolution on the respect
and strengthening of the independence of the judiciary,11 which calls for legislative amendments to
guarantee the independence of the judiciary, especially with regard to tenure.
In the European human rights system, Article 6(1) of the European Convention on Human Rights
and Fundamental Freedoms specifies that ‘in the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law’.12 This provision was
also included in Article 47 of the Charter of Fundamental Rights of the European Union, which
states that ‘[e]veryone is entitled to a […] hearing […] by an independent and impartial tribunal
previously established by law’.13
The independence of the judiciary is also prescribed as a precondition to the right to a fair trial in
international humanitarian law. Article 75(4) of the First Protocol to the Geneva Conventions of 1949
(relating to the Protection of Victims of International Armed Conflicts Conventions) stipulates that
‘[n]o sentence may be passed and no penalty may be executed on a person found guilty of a penal
offence related to the armed conflict except pursuant to a conviction pronounced by an impartial
and regularly constituted court respecting the generally recognized principles of regular judicial
procedure’.14 The Rome Statute of the International Criminal Court also expressly provides that its
judges will be independent.15
8
Organization of American States, American Convention on Human Rights, ‘Pact of San Jose’, Costa Rica, 22 November 1969. Available at: www.
unhcr.org/refworld/docid/3ae6b36510.html.
9
Article XXVI states that ‘[…] Every person accused of an offence has the right […] to be tried by courts previously established in accordance
with pre-existing laws’ Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May
1948. Available at: www.unhcr.org/refworld/docid/3ae6b3710.html.
10 Organization of African Unity, African Charter on Human and Peoples’ Rights (‘Banjul Charter’), 27 June 1981, CAB/LEG/67/3 rev. 5, 21
I.L.M. 58 (1982). Available at: www.unhcr.org/refworld/docid/3ae6b3630.html.
11 Adopted at the 19th Session of the African Commission on Human and People’s Rights, 26 March – 4 April 1996 Ouagadougou, Burkina Faso.
See African Commission on Human and People’s Rights, Final Communique of the 19th Ordinary Session of the African Commission on
Human and Peoples’ Rights, Available at: www.achpr.org/files/sessions/19th/info/communique/achpr19_fincom_1996_eng.pdf.
12 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11
and 14, 4 November 1950, ETS 5. Available at: www.unhcr.org/refworld/docid/3ae6b3b04.html.
13 European Union, Charter of Fundamental Rights of the European Union, 7 December 2000, Official Journal of the European Communities, 18
December 2000 (2000/C 364/01). Available at: www.unhcr.org/refworld/docid/3ae6b3b70.html.
14 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. Available at: www.icrc.org/ihl/INTRO/470.
15 Article 40 (1), Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa7
1.2 The Basic Principles on the Independence of the Judiciary
In 1985, the Basic Principles on the Independence of the Judiciary (hereinafter the ‘Basic
Principles’) were adopted by the Seventh United Nations Congress on the Prevention of Crime and
the Treatment of Offenders,16 which were subsequently unanimously endorsed by the UN General
Assembly the same year.17 These principles can ‘be described as being declaratory of universally
accepted views on this matter by the States Members of the United Nations, and they have become
an important yardstick in assessing the independence of the Judiciary in the work of international
monitoring organs and non-governmental organizations (NGOs)’.18
The Basic Principles should be taken into account and respected by governments within the
framework of their national legislation and practice and be brought to the attention of judges,
lawyers, members of the executive and the legislature and the public in general. The notion of
institutional independence means that ‘the Judiciary has to be independent of the other branches
of government, namely the Executive and Parliament’.19 The independence of the judiciary is
prescribed in Principle 1:
‘The independence of the judiciary shall be guaranteed by the State and enshrined in the
Constitution or the law of the country. It is the duty of all governmental and other institutions to
respect and observe the independence of the judiciary.’20
Following Principle 1, the Universal Charter of the Judge approved by the International Association
of Judges (IAJ),21 which aims to safeguard the independence of the judiciary, establishes that ‘[t]he
independence of the judge is indispensable to impartial justice under the law. It is indivisible. All
institutions and authorities, whether national or international, must respect, protect and defend
that independence’.22 As a result, the judiciary must be independent of the other branches of
government.
However, to provide the framework for the independence of the judiciary, UN Member States should
guarantee that the judiciary is not only independent but impartial. For that reason, judges shall
decide matters before them without any restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any reason, as expressed in the
‘non-interference’ provision which is Principle 2 of the Basic Principles.
16 United Nations, Seventh UN Congress on the Prevention of Crime and Treatment of Offenders, Milan, Italy 26 August – 6 September 1985.
Available at: www.asc41.com/UN_congress/7th%20UN%20Congress%20on%20the%20Prevention%20of%20Crime/7th_congress.htm.
17 General Assembly, resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Available at: www.ohchr.org/EN/
ProfessionalInterest/Pages/IndependenceJudiciary.aspx.
18 Office of the High Commissioner for Human Rights and the International Bar Association, Human Rights in the Administration of Justice: A
Manual on Human Rights for Judges, Prosecutors and Lawyers, Professional Training Series No 9/Add.1, United Nations: New York and Geneva, at
119. Available at: www.ohchr.org/Documents/Publications/training9chapter4en.pdf.
19 Ibid, at 120.
20 Ibid.
21 The International Association of Judges was founded in Salzburg (Austria) in 1953 as a professional, non-political, international organization
of national associations of judges. A principal aim of the Association is to safeguard the independence of the judiciary. See International
Association of Judges, Statute of the International Association of Judges. Available at: www.iaj-uim.org/iuw/wp-content/uploads/2013/07/firststatute_I.pdf.
22 International Association of Judges (IAJ), The Universal Charter of the Judge, 17 November 1999, Article 1. Available at: www.hjpc.ba/dc/pdf/
THE%20UNIVERSAL%20CHARTER%20OF%20THE%20JUDGE.pdf.
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Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
The Beijing Statement of Principles of the Independence of the Judiciary (the ‘Beijing Principles’)
restated this principle in the Law Association for Asia and the Pacific (LAWASIA)23 region. According
to the Beijing Principles, ‘Independence of the Judiciary requires that [a Court] decide[s] matters
before it in accordance with its impartial assessment of the facts and its understanding of the law
without improper influences, direct or indirect, from any source’.24
Similarly, The Inter-American Commission on Human Rights has recommended that the member of
the Organization of American States (OAS) should
‘take the steps necessary to protect the integrity and independence of members of the Judiciary
in the performance of their judicial functions, and specifically in relation to the processing of
human rights violations; in particular, judges must be free to decide matters before them without
any influence, inducements, pressures, threats or interferences, direct or indirect, for any reason
or from any quarter’.25
The independence and impartiality of the judiciary must be guaranteed by each State through the
rule of law. The Council of Europe’s Recommendation on the Independence of Judges states that the
independence of judges must be guaranteed by inserting specific provisions in constitutions or other
legislation and that ‘[t]he executive and legislative powers should ensure that judges are independent
and that steps are not taken which could endanger the independence of judges’.26
Thus it is clearly established that, while institutional independence of judges is vital, it is alone
insufficient for the right to a fair trial as individual judges must also be free from unwarranted
interferences. This means that the independence of the judiciary refers both to the individual judge
as well as to the judiciary as a whole. For that reason, judges ‘have both a right and a duty to decide
the cases before them according to the law, free from fear of personal criticism or reprisals of any kind, even
in situations where they are obliged to render judgements in difficult and sensitive cases’.27 On that
particular issue, the European Court of Human Rights has consistently held that:
‘in order to establish whether a tribunal can be considered “independent” for the purposes of
article 6 § 1 [of the European Convention on Human Rights], regard must be had, inter alia, to the
manner of appointment of its members and their term of office, the existence of safeguards against outside
pressures and the question whether it presents an appearance of independence.’28
23 The Law Association for Asia and the Pacific (LAWASIA) is an international organisation of lawyers’ associations, individual lawyers, judges,
legal academics, and others, which focuses on the interests and concerns of the legal profession in the Asia Pacific region. The governing
body, the LAWASIA Council, is comprised of representatives of the peak legal bodies in 25 countries. See, The Law Association for Asia and the
Pacific, Profile of LAWASIA. Available at: http://lawasia.asn.au/profile-of-lawasia.htm.
24 Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, adopted by the Chief Justices of the LAWASIA
region and other judges from Asia and the Pacific in 1995 and adopted by the LAWASIA Council in 2001, operative para 3.a.
25 Inter-American Commission on Human Rights, Annual Report of the Inter-American Commission on Human Rights 1996, OAS doc. OEA/
Ser.L/V/II.95, doc. 7 rev., at 761. Available at: www.cidh.org/annualrep/96eng/TOC.htm.
26 Council of Europe, Recommendation No R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role
of Judges, 13 October 1994, Principle 2 (b).
27 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, see note 18 above, 123.
28 Incal v Turkey, ECtHR judgment of 9 June 1998, Series 1998-IV, para 65, emphasis added.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa9
1.3 Methods of judicial selection
Although the independence of the judiciary has to be guaranteed, there is no agreement in
international law as to the methods of judicial appointment, retention and removal. Thus, while a
degree of discretion is left to individual states, the selection should always be based on the candidates’
professional qualifications and personal integrity.29 The Basic Principles assume that the manner of judicial
appointments varies from country to country30 and consequently do not establish a single method of
judicial selection. Principle 10 explicitly acknowledges the multiplicity of methods of judicial selection
but requires that ‘any’ method established by a Member State ‘shall safeguard against judicial
appointments for improper motives’.31 This principle means that, ‘irrespective of the method of
selection of judges, candidates’ professional qualifications and their personal integrity must constitute
the sole criteria for selection’.32
In similar terms, Article 9 of the Universal Charter of the Judge establishes that: ‘[t]he selection and
each appointment of a judge must be carried out according to objective and transparent criteria
based on proper professional qualification’. Similarly, the Council of Europe has recommended that:
‘All decisions concerning the professional career of judges should be based on objective criteria,
and the selection and career of judges should be based on merit, having regard to qualifications,
integrity, ability and efficiency.’33
In addition, the method of retention of judges should guarantee independence and impartiality.
This is especially relevant because: ‘unless judges have some long-term security of tenure, there is
a serious risk that their independence will be compromised, since they may be more vulnerable to
inappropriate influence in their decision-making’.34
Principle 12 of the Basic Principles further specifies that:
‘Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement
age or the expiry of their term of office, where such exists.’
As the Basic Principles do not define a reasonable term of office, the Special Rapporteur on the
Independence of Judges and Lawyers held that ‘a reasonable term would be 10 years’.35 Although this
proposed term has not been expressly endorsed by UN Member States, it has been acknowledged that
providing judges with a reasonably permanent mandate, ‘their independence will be maximized, as
will public confidence in the Judiciary’.36
29 Ibid.
30 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, see note 18 above, 116.
31 ‘Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method
of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no
discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth
or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered
discriminatory.’ [Author’s emphasis] Basic Principles on the Independence of the Judiciary, see note above.
32 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, see note 18 above, 123.
33 Recommendation No R (94) 12, Principle I.2.c.
34 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, see above note 18 above, 127.
35 ‘While fixed-term contracts may not be objectionable and not inconsistent with the principle of judicial independence, a term of five years is
too short for security of tenure. A reasonable term would be 10 years.’ UN doc. E/CN.4/2000/61/Add.1, Report on the Mission to Guatemala, para
169(c). Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/100/29/PDF/G0010029.pdf?OpenElement.
36 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, see note 18 above, 127.
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Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
Most countries do not have judicial elections, but prominent exceptions exist, including the United
States of America, Japan,37 Switzerland38 and Bolivia.39
37 See Tokuji Izumi, ‘Concerning the Japanese Public’s Evaluation of Supreme Court Justices’ (2011) 88 Washington ULR 1769.
38 Infosud Human Rights Tribune, ‘The independence of elected judges’, 4 June 2008. Available at: www.infosud.org/spip.php?page=article&id_
article=3168.
39 As determined by its new Constitution (Constitución Política del Estado – CPE) adopted in 2009, Bolivia established a democratic model to appoint
the judiciary authorities of the highest courts directly by the participation of the civil society through universal suffrage. See, Plurinational
State of Bolivia, Constitución Política del Estado (CPE), 7 February 2009, Articles 182, 188, 194 and 198. Available at: http://bolivia.infoleyes.com/
shownorm.php?id=469.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa11
Chapter Two: Judicial Selection in the
United States
Judicial independence has been a core political value in the United States since the founding of
the republic40 but it has always been considered alongside an equally strong belief in democratic
accountability. The independence of the judiciary was incorporated in the United States legal system
through the principle of separation of powers. As established in Article III of the United States
Constitution, in the federal system the judicial power was established as a branch independent of the
legislature and the executive.41
The independence of the judiciary has also been embodied in the right to a fair trial, which was
included in the Sixth Amendment that sets forth rights relating to criminal prosecutions. Through
the Due Process Clause of the Fourteenth Amendment, the Supreme Court of the United States has
applied the protection of the right of a fair trial in criminal prosecutions to all the States.
The United States signed the ICCPR on 5 October 1977 and ratified it on 8 June 1992.42 The United
States declared, upon ratification, that the provisions of Articles 1 to 27 are not self-executing, so that
those provisions, including the right to a fair trial, are not judicially enforceable upon ratification and
consequently require implementation through legislation to become enforceable. In an Executive
Report, the US Senate stated that this declaration was meant to ‘clarify that the Covenant will not
create a private cause of action in US Courts’.43
Although the United States as an international entity has the obligation to guarantee the
independence of the judiciary to ensure the right to a fair trial, each state has the final authority
to implement its own legislation to effect this. International standards on the independence of the
judiciary embodied in the Basic Principles and other instruments are not fully enforceable and can
only be used as persuasive authority.
2.1 Methods of judicial selection in the United States
The United States ‘is a laboratory of efforts to adjust judicial independence and accountability to one
another, with its federal judiciary of roughly 900 life tenured judges44 and 800 term limited judges,
and the 28,000 judges of the 50 states, the District of Columbia, and Puerto Rico’.45 Under its federal
system, these 53 jurisdictions are all largely free to structure their judiciaries and adopt their own
methods of selection of judges.
40 Alexander Hamilton, in urging ratification of the constitution of the United States, took as obvious the need for ‘steady, upright, and impartial
administration of the laws’ by a judiciary of ‘firmness and independence’. Liberty, he said, ‘would have everything to fear from [the judiciary’s]
union with’ the legislature or the executive. (The Federalist: no 78) Mira Gur-Arie & Russell Wheeler (2001). ‘Judicial Independence in the United
States: Current Issues and Relevant Background Information’, In Guidance for Promoting Judicial Independence and Impartiality, Technical Publication
Series, Washington, at 133. Available at: www.fjc.gov/public/pdf.nsf/lookup/JudIndep.pdf/$file/JudIndep.pdf.
41 The Constitution of the United States, Article 3, Section 1, Clause 1.
42 Office of the United Nations High Commissioner for Human Rights, Status of ratification: International Covenant on Civil and Political Rights.
Available at: www.ohchr.org/Documents/Issues/HRIndicators/DataICCPR.xls.
43 See United States Senate, Executive Report No 102-23 (1992) at 20. Available at: http://sitemaker.umich.edu/drwcasebook/files/senate_
committee_on_foreign_relations_report_on_the_iccpr.pdf.
44 Federal Supreme Court justices, court of appeals judges and district judges all have the tenure and salary protections of Article III. They
comprise roughly 900 of the 1,700 or so federal judges (including retired judges who still perform some judicial work).
45 ‘Judicial Independence in the United States: Current Issues and Relevant Background Information’, see note 40 above, 133.
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Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
In the federal judiciary, the appointment of judges is based on professional qualifications. The
Constitution provides that the president ‘shall nominate, and by and with the advice and consent of
the Senate, shall appoint … judges of the Supreme Court, and all other officers of the United States
[including today federal appellate and district judges], whose appointments are not herein otherwise
provided for, and which shall be established by law’.46 The Congress of the United States has enacted
no statutes to regulate the appointment of life-tenured judges and accordingly, since 1789, the
‘country relies on the selection process to screen potential federal judges for quality and integrity’.47
Unlike the system of appointing federal judges, judicial selection in the states not only varies but
has also been subject to frequent controversy and modification. According to one commentator,
‘States started with appointment systems, but in the early 19th century many replaced appointments
with partisan elections; then during several decades around 1900 many states went to nonpartisan
elections; and from 1940 to the end of the 1980s many turned to “merit” systems, with screening
committees sending nominations to the appointers and the appointed judges subsequently facing the
voters for retention or rejection.’48
Nowadays, the provisions in state constitutions on methods of appointment, retention and removal of
judges vary from state to state and can in some cases differ in the same state according to the level of
court to which the appointment is made.49 Of the 50 states in the United States of America, 38 have
established in their constitution some type of election on the appointment, retention or removal of
judges. The remaining 12 states, the District of Columbia and Puerto Rico have appointment by the
executive branch or by independent bodies.
2.2 States where judicial selection involves popular vote
Of the 38 states in the United States of America that have constitutional provisions providing for
popular election of judges on their appointment, retention or removal from office, there is no
uniform method. Schotland has commented: ‘[O]ne can identify almost as many different methods
… as there are States in the Union … Moreover, most States have changed the way they choose judges
at some point in their history, often more than once.’50 In fact, states use different types of popular
elections, such as partisan or non-partisan, and in several cases (17 states) electoral participation is
involved only on retention or removal, but not on the appointment, of judges.
Consequently, in order to present a clear picture of the manner in which states use popular elections
for the selection of judges, these states are classified into three groups:
Group 1 involves states that establish partisan elections for the appointment, retention and removal
of judges. Partisan elections are elections in which candidates are assigned to a political party on the
ballot. In these cases, when the term of office finishes, judges are subject to re-election, or in a few
cases to retention elections (see map, Figure 1).
46 The Constitution of the United States, Article 2, Section 2, Clause 1.
47 ‘Judicial Independence in the United States: Current Issues and Relevant Background Information’, see note 40 above, 138.
48 Roy A Schotland, Iowa’s 2010 Judicial Election: Appropriate Accountability or Rampant Passion? (Georgetown University Law Center 2011), 119.
Available at: http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1680&context=facpub.
49 For information on the methods of judicial selection in all the States see American Judicature Society, Judicial Selection in the States. Available at:
www.judicialselection.com.
50 Roy A Schotland, A Plea for Reality (2009) Missouri Law Review (74), 508. Available at: http://scholarship.law.missouri.edu/cgi/viewcontent.
cgi?article=3832&context=mlr.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa13
Group 2 includes states with non-partisan elections. These elections are held without political
designation, so that judges run for election and re-election unidentified with a political party on the
ballot (see map below).
States in Group 3 establish a hybrid system of selection. This system consists of an initial appointment
of judges by the executive branch or by an independent commission, with popular elections for the
retention or removal of incumbent judges. In this way, judges are appointed for an initial tenure
based on merit and are subject to retention elections for subsequent terms (see map, Figure 1).
Figure 1. US jurisdictions where the judicial selection involves some sort of electoral
participation
0
250
500
750
KILOMETERS
Group 1 – partisan elections: Alabama, Illinois, Louisiana, Pennsylvania, Texas and West Virginia.
Group 2 – non-partisan elections: Arkansas, Georgia, Idaho, Kentucky, Michigan, Minnesota, Mississippi, Montana,
Nevada, North Carolina, North Dakota, Ohio, Oregon, Washington and Wisconsin.
Group 3 – hybrid system of selection: Alaska, Arizona, California, Colorado, Florida, Indiana, Iowa, Kansas, Maryland,
Missouri, Nebraska, New Mexico, Oklahoma, South Dakota, Tennessee, Utah and Wyoming.
14
Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
1000
Even within these groups, there are differences. For example:
• Different methods of appointment, retention or removal of judges in Appellate Courts and Trial
Courts.
For example, in Arizona, California, Florida, Indiana, Kansas, Oklahoma, South Dakota and
Tennessee judges of inferior courts are elected in partisan or non-partisan elections whereas
judges of higher courts are selected by merit appointment and later subject to retention elections.
• Different types of elections for the appointment and the retention of judges.
For instance, in Illinois and Pennsylvania the selection of judges takes place through partisan
elections whereas their retention shall not consider party designation.
• Partisan or non-partisan elections as the method of selection of judges with the provision that the
legislature could refer the issue of merit selection of appellate or trial judges to the voters at any
general election.
These provisions are found in the constitutions of Arkansas, Florida, Missouri and Pennsylvania.
• Different methods of retention according to the level of court.
For instance, Maryland’s Constitution establishes that ‘appellate judges keep their seats through
retention elections, but circuit court judges run in contested, nonpartisan elections’.51
• New Mexico constitutes a particular case. The Constitution establishes a ‘hybrid system of
judicial selection that includes merit selection, partisan elections, and retention elections’.52 The
process can be described as follows: ‘When a judicial vacancy occurs, the appropriate nominating
commission recommends qualified candidates to the governor, and the governor makes an
appointment. At the next general election, a contested partisan election is held to fill the seat for
the remainder of the term. The successful candidate runs in retention elections thereafter’.53
2.3 Judicial tenure in states with judicial appointment or retention elections
The independence of the judiciary requires not only an appropriate method of selection of judges
but also a long-term security of tenure. In order to guarantee judicial stability and independence,
Principles 11 and 12 of the Basic Principles establish that judges’ tenure must be provided by law
and should last until a mandatory retirement age or the expiry of their term of office, where such
exists. There is no explicit mention of how long the tenure should be in order to ensure judicial
independence. However, as mentioned above, the Special Rapporteur on the Independence of
Judges and Lawyers has stated that a reasonable term would be ten years.
Of the states that have established some kind of election for the appointment, retention or removal
of judges, each regulates independently the term of office. Just as there are a variety of selection
methods, the term of office also varies from state to state (see Table 1). Accordingly, some states have
51 ‘Judicial Selection in the States: Maryland. Overview’ American Judicature Society. Available at: www.judicialselection.us/judicial_selection/
index.cfm?state=MD, last accessed 8 November 2013.
52 ‘Judicial Selection in the States: New Mexico. Overview’ American Judicature Society. Available at: www.judicialselection.us/judicial_selection/
index.cfm?state=NM, last accessed 8 November 2013.
53 Ibid.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa15
very short terms, which range from 30 days to three years, while other states provide for longer terms
that range from 10–15 years.
The length of term of office also varies depending on the methods of judicial selection adopted by
each state. On the one hand, states that select judges either through partisan or nonpartisan elections
(Group 1 and Group 2), establish a sole term of office. In the case of appellate courts (see Table 1)
this tenure is the same for elected and re-elected judges, ranging from six to 12 years.
On the other hand, states with a hybrid system of selection (Group 3) provide for an initial term of
appointment, before judges have to face retention elections, and a different term for subsequent
periods if retained. All of these states establish a short initial term, corresponding to the period when
judges are appointed by the executive branch or an independent body, followed by longer subsequent
terms that depend on an electoral mandate. Having an initial term can be seen as a probation period
before judges face retention elections and hold office for longer and more stable periods. Therefore,
in this case, initial or probationary terms go from 30 days to three years and following terms are
considerably longer, increasing to four to 12 years for appellate courts (see Table 1).
Table 1. State appellate courts tenure
Length/years until
next election
Sole term
Initial term
(before retention)
30 days to a year
New Mexico, Tennessee
1
Florida, Iowa, Kansas,
Maryland, Missouri, Oklahoma,
Wyoming
2
Arizona, Colorado, Indiana
3
Alaska, Nebraska, South
Dakota, Utah
Subsequent terms
6
Georgia, Idaho, Michigan,
Minnesota, Nevada, Ohio,
Oregon, Texas, Washington
Arizona, Florida, Kansas,
Nebraska, Oklahoma,
Tennessee
8
Arkansas, Kentucky, Michigan,
Mississippi, Montana, North
Carolina
Iowa, New Mexico, South
Dakota, Tennessee, Utah,
Wyoming
10
Illinois, Louisiana, North
Dakota, Pennsylvania,
Wisconsin
Alaska, Colorado, Indiana,
Maryland
12
California, West Virginia
Missouri
It is worth mentioning two special cases: New Mexico and Tennessee. Both states have established
a hybrid method of selection providing for an initial appointment by the executive branch and
subsequently popular retention elections. However, the term of office after initial appointment only
lasts until the next general election takes place in the state, which can be from 30 days to one year
after the appointment.
The term of office may also change depending on the level of the courts, meaning that different
tenures are established for trial courts (see Table 2).
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Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
Table 2. State trial courts tenure
Length/years
Sole term
Initial term
(before retention)
Until next election
(30 days to a year)
New Mexico
1
Iowa, Maryland, Missouri,
Wyoming
2
Arizona, Colorado, Indiana
3
Alaska, Nebraska, Utah
Subsequent terms
4
Georgia, Idaho, Illinois, Kansas,
Mississippi, North Carolina,
Oklahoma, Texas, Washington
Arizona, Colorado, Indiana,
Missouri
6
Arkansas, Alabama,
California, Florida, Indiana,
Illinois, Louisiana, Michigan,
Minnesota, Montana, Nevada,
North Dakota, Ohio, Oregon,
Wisconsin
Colorado, Kansas, Indiana,
Iowa, Wyoming, Missouri,
Nebraska, New Mexico
8
Kentucky, South Dakota,
Tennessee, West Virginia
Utah, Wyoming
10
Pennsylvania
Alaska
12
California
15
Maryland
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa17
Chapter Three: Critique of Judicial
Selection Through Popular Vote
The United States is one of the few countries in the world where the appointment, retention and
removal of judges may involve some sort of popular election. This is democratic and more apparently
transparent than appointment by a designated body. However, popular elections may raise issues
as to the suitability of the candidates elected and concerns have been raised about this method of
selection.
Nearly 50 years ago the International Commission of Jurists noted the risks that the election of
judges and, in particular, re-election pose to the independence of the judiciary. According to the
Commission:
‘The selection of judges by election and particularly by re-election, as in some countries, presents
special risks to the independence of the judiciary which are more likely to be avoided only where
tradition has circumscribed by prior agreement the list of candidates and has limited political
controversy.’54
In 1995, when dealing with this practice in some states in the United States, the Human Rights
Committee (the ‘Committee’) expressed its concern ‘about the impact which the current system
of election of judges may, in a few states, have on the implementation of the rights provided under
Article 14 of the Covenant [on the right to be tried by an independent and impartial tribunal]’
and welcomed ‘the efforts of a number of states in the adoption of a merit-selection system’.55
Furthermore, the Committee recommended in 1996 that the system of ‘appointment of judges
through elections be reconsidered with a view to its replacement by a system of appointment on merit
by an independent body’.56
Likewise, in 1998, with regard to the situation in Armenia, the Committee observed that ‘the election
of judges by popular vote for a fixed maximum term of six years does not ensure their independence
and impartiality’.57 As a result, the Committee concluded that the independence of the judiciary in
Armenia was ‘not fully guaranteed’.58
According to these observations, the method of electing judges through popular vote may be
incompatible with the principles of judicial independence as embodied in the Basic Principles and
in the right to a fair trial set forth in Article 14 of the ICCPR. In particular, judicial selection through
popular election poses serious issues with regard to the following principles on the independence of
the judiciary: non-interference, non-discrimination and security of tenure.
54 International Commission of Jurists, The Rule of Law and Human Rights: Principles and Definitions, Geneva, 1966, at 30, para 2. Available at: www.
globalwebpost.com/genocide1971/h_rights/rol/5_judiciary.htm.
55 Human Rights Committee, Comments on United States of America, UN Doc CCPR/C/79/Add 50 (1995), para 23. Available at: www1.umn.edu/
humanrts/usdocs/hrcuscomments.html.
56 Human Rights Committee, UN Doc A/50/40, United Nations: New York, 1996 para 301. Available at: www.unhchr.ch/tbs/doc.nsf/0/
bbd592d8d48a76fec12563f000586adc/$FILE/N9602481.pdf.
57 Human Rights Committee, Concluding observations on Armenia, UN Doc CCPR/C/79/Add.100, 1998. Available at: www.unhchr.ch/tbs/doc.
nsf/%28Symbol%29/CCPR.C.79.Add.100.En?Opendocument.
58Ibid.
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Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
3.1 The non-interference principle
Under Principle 2 of the Basic Principles, States must guarantee the ability of the judiciary to decide
matters before them impartially ‘without any restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any reason’. Although judicial
selection through popular vote is clearly intended to promote democratic accountability, the balance
between democratic accountability and judicial independence needs to be carefully considered.
In the states of the United States where judicial selection involves some sort of electoral participation,
the judges may be subject to improper pressures as their selection, retention or removal is ultimately
decided on the basis of popular approval of their actions. As voters may often not be well informed
on the judges’ (or candidates) background, skills or performance, their votes will depend on their
personal preferences and perceptions of justice.
The problems inherent in judicial elections are more evident in states where judges have to be subject
to election to retain their positions soon after their appointment (usually from one to three years).
If judges are concerned whether their decisions are well received by society, they may be influenced
in handing down ‘popular’ decisions and abstain from rendering unpopular ones. Accordingly, their
rulings may be politically motivated rather than impartial.59
The ‘non-interference’ provision included in Principle 2 of the Basic Principles is also violated when
judicial elections experience direct or indirect improper influences, inducements or interferences from
the parties that make contributions to the judges’ campaigns. Some of the major contributors are the
lawyers who appear before them in court.60 In other situations, major contributors are big corporations
that are involved in litigation proceedings and make donation to ‘the campaigns of judges who interpret
the law in a manner that benefits their contributors rather than citizens seeking justice’.61
Although in these situations judges often ‘claim they are not influenced because [in some states]
court rules forbid them from learning who contributes to their campaigns or how much,’ they can
access such information as ‘details on donors are part of a public record readily available to anyone
with an Internet connection’.62 In Caperton v A T Massey Coal Co,63 a 2009 US Supreme Court decision,
the Court held that in these situations, one of the parties can have ‘a significant and disproportionate
influence in placing the judge on the case’ and thus poses a ‘serious, objective risk of actual bias’.64
59 Iowa’s 2010 Judicial Election: Appropriate Accountability or Rampant Passion? See note 48 above, 123.
60 For example, it is reported that in New York State, before the judicial election process was amended, John Powers, a former President of
the New York State Trial Lawyers Association, revealed that his firm made contributions of US$10,000 and more to various judges before
whom the firm practised. See, New York Personal Injury Law Blog, The Ethical Problem of Electing Judges, 28 October 2008. Available at:
www.newyorkpersonalinjuryattorneyblog.com/2008/10/the-ethical-problem-of-electing-judges.html.
61 Billy Corriher, Big Business Taking over State Supreme Courts. How Campaign Contributions to Judges Tip the Scales Against Individuals, Center for
American Progress, August 2012. Available at: www.americanprogress.org/wp-content/uploads/2012/08/StateCourtsReport_execsumm.pdf.
62 Mark Lagerkvist, The Worst Judges Money Can Buy: The System Is the Crime, 31 October 2008. Available at: http://exposecorruptcourts.blogspot.
co.uk/2008/10/worst-judges-money-can-buy.html.
63 Caperton v A T Massey Coal Co, 129 S Ct 2252 (2009).
64 ‘Brent Benjamin, the candidate who successfully challenged an incumbent justice in that contest [2004 elections], had received $1,000 in
campaign contributions from Don Blankenship, the president and CEO of Massey Energy. Blankenship also spent $3 million in support
of the challenger’s election. At the same time, Massey Energy was involved in litigation in which it had been ordered to pay $50 million in
damages, a figure which grew to $82 million with post-trial interest. In 2006, Massey Energy’s appeal of this verdict reached the West Virginia
Supreme Court of Appeals. Justice Benjamin twice rejected motions by the opposing party, Hugh Caperton, that he recuse himself because
of Blankenship’s campaign support, and Benjamin joined a 3-2 majority overturning the ruling against Massey Energy.’ American Judicature
Society, Judicial Selection in the States: West Virginia. Available at: www.judicialselection.us/judicial_selection/index.cfm?state=WV.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa19
The ‘decision has prompted recusal reform proposals in many states that elect judges, as well as calls
for broader selection reform’.65
3.2 The non-discrimination principle
The ‘non-discrimination’ provision included in Principle 10 of the Basic Principles establishes that
‘[i]n the selection of judges, there shall be no discrimination against a person on the grounds of race,
colour, sex, religion, political or other opinion, national or social origin, property, birth or status’.
The only exception to this principle is a requirement that a candidate for judicial office must be a
national of the country concerned. For that reason, any method of judicial selection that requires
one of the above mentioned grounds violates the Principle.
In the states of the United States where the judicial selection involves some sort of electoral
participation, there are no formal requirements that indicate that there is discrimination against
judges or candidates on these grounds. However, as was mentioned above, the states from Group
1 have partisan elections and accordingly, candidates are listed on the ballot along with a label
designating the political party’s ballot on which they are running. For that reason, the political
affiliation of the judge or candidate can become a principal ground on which he or she is elected,
retained or removed.
In these partisan scenarios, the selection of judges can also encompass an election process where
religion, political or other opinions may be used to discredit the ability of a judge or a candidate.
As has been evidenced in some states, partisan judicial elections have concentrated on political or
personal issues (attack ads) rather than in the legal skills of judges or candidates.66 Accordingly, these
methods of judicial selection can lead to discrimination against a person on the grounds of political
opinion and as a result can violate Principle 10 of the Basic Principles.
On the other hand, although in theory this problem may not seem applicable in the states
from Group 2 and some from Group 3 where the judicial selection is non-partisan, in practice
discrimination can also take place during the election campaigns. In these cases, while judges or
candidates may not be associated with a political party, their opinions may be used to discredit their
ability to perform their duties. As has been seen in states such as Iowa, elections have been based on
political issues (eg whether society should allow gay marriage) rather than on the legal skills of judges
or candidates.
In some judicial retention elections, it has been proposed that ‘it may well be that most voters in
fact agreed with the decisions that actually led to the incumbent’s being opposed, but were misled by
sophisticated campaigning that relied on selling what was easy to sell’.67 Campaigns against judges
that are carried out through attacks based on unrelated and misleading claims distort judicial
accountability.68
65 Judicial Selection in the States: West Virginia, see note 64 above.
66 For example in West Virginia, the 2004 Supreme Court of Appeals ‘garnered national attention because of the number of attack ads aired by
both candidates and special interest groups and the negativity of the ads. More than four of every five ads aired by the campaigns were attack
ads, and of all the attack ads aired in 2004 in supreme court races, nearly 43% aired in West Virginia alone’. American Judicature Society,
Judicial Selection in the States: West Virginia, see note 64 above.
67 Iowa’s 2010 Judicial Election: Appropriate Accountability or Rampant Passion? See note 48 above, 125.
68 Ibid, 126.
20
Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
3.3 The principle of secure tenure
Principle 11 of the Basic Principles provides that, ‘[t]he term of office of judges, their independence,
security … shall be adequately secured by law’. Principle 12 provides that such tenure shall be
guaranteed ‘until a mandatory retirement age or the expiry of their term of office, where such exists’.
Although these principles do not provide a fixed term of office, it is widely accepted that the tenure
should be guaranteed for a reasonable permanent mandate to maximize the judges’ independence.69
As mentioned above, the Special Rapporteur on the Independence of Judges and Lawyers held
that a reasonable term of office for judges would be ten years.70 While this may be used as a general
guideline and consequently a certain degree of discretion is left to individual States, the judicial term
of office should be reasonable according to international standards.
In the United States, there are different ranges for the duration of judicial office and there are no
uniform criteria among the 53 jurisdictions. In the case of the 38 states where judicial selection
involves some sort of electoral participation, the term of office varies significantly. Taking the tenyear term identified by the Special Rapporteur on the Independence of Judges and Lawyers as an
international guideline, some states do fall within the guideline by establishing a term of office
between eight and 15 years. However, in several cases the sole, initial or subsequent terms of office are
far below the international guideline and potentially compromise the independence and impartiality
of the judiciary.
Especially disturbing is the situation of some states in which the initial or probationary period of
appointment by merit is very short before judges are subject to popular elections to retain their
positions (usually one to three years). In these cases, as a longer subsequent period depends on
their retention, judges might be unduly concerned whether their decisions are well received by the
community. As a result, to retain their office, some judges may abstain from rendering unpopular
decisions and, accordingly, their rulings may be politically motivated instead of being impartial and
based solely on the rule of law.
69 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, see note 18 above,127.
70 Report on the Mission to Guatemala, see note 35 above, para 169(c).
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa21
Chapter Four: Campaigns Against
Judges in Iowa
Cal Flynn, of Grimes, Iowa, holds a sign during a rally held before a bus tour by gay marriage opponents through the state to
remove three state Supreme Court justices who joined in a unanimous ruling legalizing gay marriage.
The 2010 judicial elections in Iowa were an unprecedented case in which the electorate voted against
retention of three Supreme Court justices71 who had participated in a unanimous decision to uphold
gay marriage.72 This was the first time members of Iowa’s Supreme Court had been rejected by voters
and it also had implications for judicial elections across the country.73 Former Arkansas Governor
Mike Huckabee described the elections as of an ‘historic nature’, likely ‘one that […] will give legs to
a larger movement over the next few years’.74
71 Masha Ternus, the Chief Justice; and Justices Michael J Streit and David L Baker.
72 The 2009 Iowa Supreme Court decision had struck down Iowa’s 1998 Defense of Marriage Act in a suit brought in 2005 by six gay couples who
had been denied marriage licenses. Varnum v Brien, 763 N.W. 2d 862 (Iowa 2009).
73 A G Sulzberger, ‘In Iowa, Voters Oust Judges Over Marriage Issue’, The New York Times (New York 3 November 2010). Available at: www.nytimes.
com/2010/11/03/us/politics/03judges.html?pagewanted=all[.
74 Mike Glover, ‘Huckabee Says Ousting of Iowa Judges Historic Move’, (Associated Press 21 November 2010). Available at: www.foxnews.com/
us/2010/11/21/huckabee-says-ousting-iowa-judges-historic.
22
Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
4.1 Politicised elections and threats to the independence of the judiciary
According to the Iowa judicial selection system, the Supreme Court’s judges are initially appointed by
the governor from lists of nominees submitted by the appropriate judicial nominating commission.75
However, as Iowa has a hybrid system of selection (Group 3) the appointed judges have to stand for
election to retain their positions.76 Under this system, judges face no opponents and simply need to
gain more yes votes than no votes to remain in office for another eight-year term.
Normally only a little more than 60 per cent of Iowa voters would cast a ballot in such elections. In 2010,
an unprecedented 88 per cent did so.77 On this occasion, ‘[t]he extremely high participation in voting
on retention was attributable in part to the fact that the races for Governor and for US Senator were not
at all close, so attention in media coverage and otherwise focused on the retention contest’.78
Although each of the three justices received about 45 per cent support, they were removed after
‘an unusually aggressive ouster campaign in the typically sleepy state judicial retention elections that
pitted concerns about judicial overreaching against concerns about judicial independence’.79 Even
though the Iowa-based Fair Courts for Us Committee,80 Justice Not Politics and Iowans for Fair Courts
were the organisations supporting the justices’ retention,81 aggressive campaigns against the judges
were financed by out-of-state organisations opposed to gay marriage.82 The elections became more
like a referendum on gay marriage.
During the campaign, opponents of the justices’ retention used red signs declaring ‘No Activist
Judges’ or ‘It’s we the people, not we the courts’.83 The campaign against the justices’ retention
was mainly led by Bob Vander Plaats, who had previously lost the 2010 Republican nomination for
governor.84 Soon after the judicial elections took place, Vander Plaats declared that the elections sent
‘a powerful message to any judge who thinks they can impose gay marriage by judicial fiat against the
wishes of the people’ and he further declared that ‘it will send a message across the country that the
power resides with the people. It’s we the people, not we the courts’.85
75 Constitution of the State of Iowa, Section 15: ‘Vacancies in the supreme court and district court shall be filled by appointment by the governor
from lists of nominees submitted by the appropriate judicial nominating commission. Three nominees shall be submitted for each supreme
court vacancy, and two nominees shall be submitted for each district court vacancy. If the governor fails for thirty days to make the appointment,
it shall be made from such nominees by the chief justice of the supreme court’.
76 Ibid, Section 17: ‘Members of all courts shall have such tenure in office as may be fixed by law, but terms of supreme court judges shall be not
less than eight years and terms of district court judges shall be not less than six years. Judges shall serve for one year after appointment and
until the first day of January following the next judicial election after the expiration of such year. They shall at such judicial election stand
for retention in office on a separate ballot which shall submit the question of whether such judge shall be retained in office for the tenure
prescribed for such office and when such tenure is a term of years, on their request, they shall, at the judicial election next before the end of
each term, stand again for retention on such ballot. Present supreme court and district court judges, at the expiration of their respective terms,
may be retained in office in like manner for the tenure prescribed for such office. The general assembly shall prescribe the time for holding
judicial elections’.
77 See note 48 above, 120.
78 Ibid.
79 See note 73 above.
80 Approximately US$423,767 were raised by the Iowa-based Fair Courts for Us Committee for the campaigns supporting the justices’ retention.
81 See note 48 above, 121-122.
82 For the campaign against the justices approximately US$1m was spent, including more than US$900,000 from three out-of-state organisations:
the National Organization for Marriage based in Washington, DC; the American Family Association’s AFA Action, Inc of Tupelo, Mississippi;
and the Campaign for Working Families PAC of Arlington, Virginia.
83 See note 73 above.
84 Ibid.
85 Iona Institute, Big wins for marriage supporters in US mid-terms, 4 November 2010. Available at: www.ionainstitute.ie/index.php?id=1135.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa23
After the justices were removed from their positions, they said in a public statement that the Iowa
judicial election system was subject to an ‘unprecedented attack by out-of-state special interest groups’.86
The justices further stressed their hope that ‘Iowans will continue to support Iowa’s merit selection
system for appointing judges. This system helps ensure that judges base their decisions on the law and
the Constitution and nothing else.’87 Supporters of the judges’ retention expressed their concern that a
precedent was set indicating the influence of money and politics on the judicial system.88
Although the Iowa judicial election was the most controversial, similar campaigns took place in other
states against state Supreme Court justices standing for retention elections: Illinois, Colorado, Kansas,
Florida and Alaska. Most of the opposition was centred on judges whose rulings had distressed
conservatives on matters involving abortion, taxes, tort reform and health care, among others.89
Notably, ‘in the five states other than Iowa with opposition to judges in 2010, there was less support
for retention, on average, than had been the case from 1998 to 2008’.90
The 2010 judicial elections evidenced the serious concerns that judicial independence faces when
the method of selection is the popular vote. As a similar pattern was replicated in other states across
the United States, judicial retention elections became a scenario where judges were held accountable
for their decisions based on the ‘will of the people’ rather than for their legal skills and their
performance according to the rule of law.91 In the case of Iowa, the judicial elections were carried out
in a way that violated the principles of non-interference and non-discrimination as set out in the UN
Basic Principles on the Independence of the Judiciary.
Although the Supreme Court judges had already made their decisions (including a unanimous decision
to uphold gay marriage) when they were removed, the 2010 elections created a precedent where future
judges may be removed if their decisions do not match the people’s perception of justice. Populism can
become a permanent indirect pressure on and an interference with judicial decisions. As judges will
only retain their positions if the people vote in their favour, it is likely that they ‘will start looking over
their shoulders every time they vote in a controversial case or rule in a way that is unpopular’.92
4.2 The role of the bar associations
Soon after the 2010 Iowa judicial elections took place, academics and civil society organisations
claimed that state and national associations with the mission of supporting judicial independence
failed to effectively respond to the situation. Described as ‘strikingly absent or severely limited’, the
efforts made by state and national organisations were not able to prevent the politicised outcome.93
86CNN, Iowa voters oust justices who made same-sex marriage legal, 3 November 2010. Available at: http://edition.cnn.com/2010/POLITICS/11/03/
iowa.judges/index.html.
87 Ibid.
88 See note 73 above.
89 Ibid.
90 See note 48 above, 118.
91 Ibid, at 123.
92 USA Today, ‘Our view on judicial independence: Judges face reprisals for unpopular rulings’, 18 October 2010. Available at: http://usatoday30.
usatoday.com/news/opinion/editorials/2010-10-19-editorial19_ST_N.htm.
93 See note 48 above, 122.
24
Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
The American Bar Association (ABA) is the national association of attorneys committed to ‘advancing
the rule of law throughout the United States and around the world’.94 However, it must be mentioned
that as a national body within a federal system, ‘the ABA understandably leaves local action to state
and local bar associations’.95 For that reason, the ABA relied on the actions undertaken by the Iowa
State Bar Association, although it has since introduced ‘Least Understood Branch’ training to assist
bar leaders in responding to questions about the role of the judiciary and attacks upon it.
The Iowa State Bar Association was accordingly the principal organisation in charge of supporting
judicial independence at the state level. In the 2010 judicial elections, according to one commentator,
‘[t]he Iowa Bar was alert to the situation, did come into action, and their action was substantial, but
not more; it aimed entirely at explaining voting in a retention election’.96 Thus, as the Iowa Bar’s
efforts only centred on explaining the purpose of retention elections, they did not effectively oppose
or prevent the inappropriate attacks that the Supreme Court’s justices faced.
In contrast to the actions taken by the Iowa Bar, ‘[m]any state bar associations and others do have
“rapid response” plans and people ready to defend courts when judges are under inappropriate
attack’.97 As a result, many claimed that the Iowa Bar ought to have launched strong responses shortly
after the justices came under politicised censorship.98 Due to these denunciations, the Iowa Bar
assumed a more affirmative role in the 2012 judicial elections and promoted a campaign aimed to
support the judges’ retention under the slogan ‘Yes Freedom, Yes Liberty, Yes Iowa Judges.’99
Despite the absent or limited actions to prevent the political attacks against the Iowa judges, there
was nevertheless some support for the three justices. The then president of the ABA, Stephen N Zack,
wrote an editorial on the need to protect courts from intimidation.100 In similar terms, the former
president of the New York City Bar Association, Samuel W Seymour, said that ‘[w]hen a judge suffers
an electoral defeat because he or she exercised judicial independence, we all suffer’.101
94 American Bar Association, ‘About the IBA’. Available at: www.americanbar.org/utility/about_the_aba.html.
95 See note 48 above, 122.
96 Ibid.
97 Ibid, at 123.
98 Ibid.
99 See, The Iowa State Bar Association, 2012 judicial retention elections. Available at: http://thegazette.com/2012/09/21/iowa-state-bar-starts-itsyes-iowa-judges-statewide-tour-next-week.
100 Stephen N Zack, ‘Warning Bells in Midwest: Protect Courts from Intimidation’, Des Moines Register (24 November 2010).
101 Samuel W Seymour, ‘Judges Were Independent. Then They Were Defeated, Letter to the Editor’, The New York Times, (7 November 2010).
Available at: www.nytimes.com/2010/11/07/opinion/l07judge.html?_r=0.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa25
In addition, organisations such as the American Judicature Society and Justice at Stake, two national
organisations, although legally banned from campaigning activity, engaged actively with educational
programmes and events about judicial retention elections in Iowa. The Executive Director of Justice
at Stake, Bert Brandenberg, wrote the op-ed ‘Look at Whole Record of Judges Before Voting’
published online in the Denver Post.102 The Center for Judicial Independence was created by the
American Judicature Society in 1997, ‘in response to an increase in unfair criticism and efforts
to remove from the bench judges who have issued unpopular rulings’103 and has committed to
‘educating the public about the role of courts’.
However, in 2010, without the unanimous and vigorous support of the Iowa Bar Association and the
ABA, there was insufficient resistance to the wrathful votes of an opinionated and sometimes illinformed public.104
102 Bert Brandenberg, ‘Look at Whole Record of Judges Before Voting’, Denver Post (27 October 2010). Available at: www.denverpost.com/
guestcommentary/ci_16439027 in: Iowa’s 2010 Judicial Election: Appropriate Accountability or Rampant Passion? See note 48 above, 122.
103 American Judicature Society. ‘Judicial Independence’. Available at: www.ajs.org/judicature-journal/editorial/judicial-independence/.
104 The Hon Michael Kirby, ‘Judicial Independence: The United States Election Systems and Judicial Removals in Iowa’, (2013) 36 Australian Bar
Review 270.
26
Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa DECEMBER 2013
Conclusion and Recommendations
The independence and impartiality of judges and courts is at the heart of a judicial system that
guarantees human rights and the rule of law, particularly the right to a fair trial, in full conformity
with international law. The 1985 Basic Principles on the Independence of the Judiciary are
declaratory of universally accepted views of United Nations Member States and provide the general
guidelines to be implemented at the national level. Accordingly, the constitution, laws and policies of
each State must ensure that the judicial system is effectively impartial and independent from other
branches of the State.
One of the core elements to guarantee judicial independence is the establishment of a method of
judicial selection according to the rule of law and security of tenure; however there is no agreement
in the international community as to the methods of selecting, retaining or removing judges. The
Basic Principles are neutral with regard to the appointment or election of judges and consequently
do not exclude the election by popular vote as a valid method of judicial selection.
Despite the open framework of the Basic Principles in relation to the methods of judicial selection,
serious concerns about election through popular vote have been raised. The judicial retention
elections in Iowa in 2010 were incompatible with the principles of judicial independence as embodied
in the Basic Principles and the right to a fair trial as set forth in Article 14 of the ICCPR. In particular,
judicial elections may become politicised scenarios where the principles of non-interference, nondiscrimination and the security of tenure are violated. Judicial elections can become referenda on
social issues.
It is clear that judges should be appointed and retained on their professional qualifications and
through a transparent procedure that guarantees their independence and impartiality. The system
established for the appointment of federal judges in the United States amalgamates procedures
for merit appointment and removal with engagement with democracy. Appointment and retention
of judges at the state level through elections should be reconsidered by the states, through their
constitutional processes, (and with guidance from expert bodies such as the American Law Institute,
the American Bar Association and state bar associations), with a view to its modification by a system
of appointment on merit. Proponents of removal or non-renewal should be required to indicate
appropriate grounds warranting such a course, taking into account the principles of judicial
independence and impartiality.
Responsible bar associations should take up this cause. The wrongful removal of a judge, even if done
through an election, is a serious impediment to the rule of law.
DECEMBER 2013 Challenges to the Independence of the Judiciary: A Case Study of the Removal of Three Judges in Iowa27
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