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What message do voters send by removing a judge from office based on disagreement with a lawful judicial decision? That question is at the heart of this issue of the American Judges Association’s Court Review, which focuses on the issue in light of the 2018 recall of California Judge Aaron Persky based on public outrage at the lawful, but extremely lenient, sentence he gave to a Stanford University student-athlete in a highly publicized sexual assault case. The message to other judges: Impose harsher sentences? Or perhaps a more specific message: Take sexual assault cases seriously? Viewed broadly, is this an example of the voters demanding accountability in sentencing, or of voters sending a more insidious message—Rule in a way that is not in step with the prevailing public opinion and risk your position as a judge? Despite the valid concerns caused by the Stanford case, it is this latter message that, in my view, presents the greatest threat to judicial independence.
In 2010, those who opposed same-sex marriage in Iowa sent precisely this dangerous message. An aptly named TV ad, “Send Them a Message,” urged Iowa voters to “vote NO” on the retention of three respected Iowa Supreme Court justices, characterizing them as “activist judges” who “ignor[e] the will of voters,” “legislat[e] from the bench,” and “usurp the will of voters.”1 The ad was part of a larger, politically motivated campaign to oust the three justices who were on the ballot for merit retention. To be clear, the outrage was not based on the justices’ ethics, professionalism, jurisprudence, or judicial integrity. Rather, the effort to remove these justices focused on one particular, unanimous decision striking down, as unconstitutional, Iowa’s ban on same-sex marriage. The message: Do not ignore the will of the voters.