Hobbling Independence of Courts: Special Interests Target LGBT Judges, Courts that Support Equality

August 27, 2012

by Jeremy Leaming

Lawmakers may help push equality measures for LGBT persons, but at the end of the day if the state and federal courts are made up of rightwing jurists and those beholden to corporate interests, advancements toward equality will likely be an ongoing arduous and fitful slog.

The health and safety of the LGBT community is “inextricably tied to the health and safety and vigor of our court systems, both federal and state,” said Justice at Stake’s Praveen Fernandes, at an Aug. 24 panel discussion at the National LGBT Bar Association’s 2012 Lavender Law gathering in Washington, D.C. Fernandes, the Director of Federal Affairs and Diversity Initiatives at Justice at Stake, noted that many people concentrate on the role federal courts occupy in legal battles, but that the “vast majority” of law is determined at the state level.

And on the state level there is an increasing challenge to ensure that judges are independent of special interests. Thirty-nine states elect judges, and an increasing amount of money is flowing into those elections to elect judges inclined to advance corporate interests at the cost to individual rights. Several of the panelists participating in the “Defending the Courts: Why the LGBT Community Should be Particularly Concerned about the Strength and Independence of the Bench,” also noted that judges who uphold or bolster rights for the LGBT community are vulnerable to well-funded efforts to remove them from the bench.

Judge Mary Celeste of the Denver County Court highlighted one of the more infamous efforts to punish judges who supported equality. 

“We are talking about defending people who are supportive of LGBT issues. Now is anyone here not aware of what happened in Iowa,” Celeste said, referring to the successful effort to oust three Iowa Supreme Court justices who were involved in a 2009 state court ruling that supported same-sex marriages. 

The effort to oust the three Iowa Supreme Court justices was spearheaded by the American Family Association, a Christian lobbying group, and attracted $948.355 from out-of-state groups. In late 2010 former Arkansas Governor and Republican presidential hopeful Mike Huckabee applauded the effort to remove the Iowa Supreme Court justices, claiming that Iowans were “sick of one branch of government thinking it is more powerful than the other two put together,” the Iowa Independent reported.

Eric Lesh, Fair Courts Project Manager at Lambda Legal, added that the nation’s courts “face real threats from well-funded, special interest groups that seek to politicize our judiciary and undermine the integrity of our system of justice.”

Before focusing on money funneling into judicial contests, Lesh highlighted some attacks on individual judges who have ruled in favor of LGBT equality.

Lesh pointed to the attempt by supporters of California’s Proposition 8, a ballot measure overturning marriage equality in the state, to tar former federal judge Vaughn R. Walker’s ruling that the ballot measure was unconstitutional. The Prop. 8 supporters had tried to have Walker’s opinion nullified because Walker allegedly stood to gain from his ruling. (Walker is gay and has a longtime partner.) UCLA law school professor and constitutional law expert Adam Winkler blasted the Prop. 8 supporters’ effort to impugn Walker’s reputation and scuttle his opinion in the case. “Implicit in Proposition 8 supporters’ effort to recuse Judge Walker is the notion that, unlike a gay judge who might benefit from marriage, a heterosexual judge would be impartial. But to accept that notion, we must reject another central claim in the case against same-sex marriage: that gay marriage undermines the traditional institution of marriage,” Winkler wrote for The Huffington Post.

Although the federal courts rejected the attack against Walker, Lesh said the narrative has gained political traction, being employed by other anti-gay groups to attack openly gay judges. He said the tactic is being used to undermine the integrity of a lesbian judge presiding over a marriage equality case in Illinois. Lesh noted a broadcast in Illinois, dubbed “Americans for Truth About Homosexuality Radio Hour,” where guests lob outrageous attacks on lesbians and gay men, “even attacking the very existence of LGBT judges.”

“These attacks are real, they are really out there,” Lesh said.

Beyond the increasing attacks on judges who are openly gay or those who issue opinions advancing equality for LGBT persons, the independence of courts is being undermined by a growing stream of money flowing into judicial elections. 

For ten years money in judicial elections has been on the rise, said Justice at Stake’s Deputy Executive Director for Policy and Advocacy Liz Seaton. But a new report from the Center of American Progress (CAP) shows a disconcerting uptick in the amount of money being spent to shape the make-up of state Supreme Courts.

Seaton citing the CAP report showing that state high courts receiving the most financial support are those, perhaps not surprisingly, “much more likely to rule in favor of big businesses and against individuals who have been injured, scammed, or subjected to discrimination.”

“The folks who have a lot of money to spend in judicial races,” Seaton continued, “are not looking to protect individual rights or civil rights; that’s not their goal.”

Seaton noted that a major goal of Justice at Stake is to “help improve the way judges are selected and to help insulate judges from political pressure and from campaign spending, so that they can be fair and impartial and make decisions according to the facts and the law.”

The panelists noted a number of ways to counter the numerous efforts to attack courts’ independence, but they were all engaging in one of the most important – raising awareness of the matter. For too long many liberals have given short-shrift to the make-up of courts. In fairness, liberals have also had lots of ground to cover in fighting economic policies that favor the superrich and countering constant efforts of the right to portray the U.S. Constitution as a governing document that seriously restricts the government’s ability to tackle pressing national issues.

Nonetheless, the Lavender Law panel led by Justice at Stake was a strong and essential reminder that liberal, progressive policies are always in jeopardy if state and federal courts are packed with jurists who are hostile to equality and individual rights, but endeared to corporate interests.