A case of politics in the courtroom

WORLDVIEW:The US supreme court, perhaps even more than Congress, is ‘the decider’ of many political issues

IN 1935 Montana made party endorsements of candidates for judgeships an offence. Although elected, state judges would, the theory went, remain outside the political arena, with judicial independence safeguarded.

Last week, the US ninth circuit court of appeals ruled that the state must stop enforcing the ban. Significantly, its argument was based on the US supreme court’s landmark decision in the 2010 Citizens United case which, in clearing the way for unbridled corporate funding of campaigns, has already done more to change the face of US politics than any ruling since the 1930s.

The court of appeals found that the Montana law had similarly curtailed free speech, and the local Republican Party is now set to endorse a candidate for the bench for the first time in 77 years.

The case underlines, in a way that would be foreign to our own political culture, one dimension of the abrasive interface between politics and the judiciary that blurs distinctions between them and brings the latter to the centre stage of what is at stake in politics, not least presidential elections.

In Iowa matters have gone further. David Wiggins, a competent member of the state supreme court, is now facing a bitter re-election campaign orchestrated by conservatives because he was part of a unanimous 2009 ruling overturning the state’s prohibition on same-sex marriage.

While the state appoints judges on merit, it requires them to face periodic retention votes, a provision meant to allow only for the removal of corrupt or incompetent judges. But in 2010, in what was seen by many as a shocking intrusion of partisanship and even judicial intimidation, Wiggins’s then colleagues, chief justice Marsha Ternus and associated justices David Baker and Michael Streit, saw their own bids for retention blocked by a similar campaign.

There has been a vigorous campaign against Wiggins: prominent Republican politicians such as Louisiana governor Bobby Jindal and Rick Santorum, winner of January’s Republican Iowa caucuses, this week joined a four-day “No Wiggins” bus tour of 17 Iowa communities. But despite this, Wiggins is refusing on principle to campaign for himself.

“Campaigns are political,” he explained to the Des Moines Register. “They require candidates to count votes and appeal to donors. That system has created a big enough mess in Congress. It has no business in the courts. Judges should be beholden only to the constitution and the law.”

If only.

Wiggins’s honourable aloofness from the political fray is unfortunately a case of wishful thinking. Ironically, at a national level it is precisely the courts, specifically the supreme court via the Citizens United case and its fallout in Montana, that are paving the way for more rather than less influence-buying in elections, whether judicial or political.