Other states also saw campaigns, financed by special interest groups both corporate and issue based, to oust or replace judges. In Nevada, a ballot measure that would have allowed judges to be appointed and then confirmed by popular vote rather than elected outright failed. The Nevada measure received more ''no'' votes than any individual judge on the ballot received. In other words, more people wanted the right to vote on judges than actually exercised that right where it already existed. I voted for the measure while not casting any votes in the judicial elections precisely because I was not informed enough to cast a vote on the judges up for election, and I am an avid follower of legal and political news at all levels. The only readily available information on judicial elections here in Las Vegas was sporadic yard signs posted in vacant lots, hardly the basis for informed democracy.
Helm might have looked back to 1986 when California voters rejected three members of its Supreme Court for the first time. Rose Bird, Cruz Reynoso and Joseph Grodin failed to be confirmed by California voters after a massive campaign was mounted against them for their votes in overturning death penalty cases. Bird was particularly excoriated after authoring a dissent in a case that would have struck down California’s ''use a gun, go to jail'' law that imposed mandatory sentences - another increasingly popular threat to judicial independence. In her dissent, Bird wrote ''In section 1203.06, the Legislature has in effect vested in the representative of the executive branch, the prosecutor, all discretion as to a local disposition (probation with a county jail sentence) and withdrawn such discretion totally from the judicial branch.''
The founding fathers made it clear that they wanted an independent judiciary on the federal level. Madison, in Federalist 10, explicitly warns us of the dangers of following mass impulse and the need to shield us against the tyranny of the majority. The Constitution grants the power to appoint federal judges to the President and gives the right of consent to the Senate. In its original form, neither the President nor the Senate was elected by the people. Only the House of Representatives, the People’s House, drew their mandate directly from the individual voters. It was no accident that the House of Representatives was left out of the process of appointing judges. Certainly the Constitution allows states to follow a different path, but in clamoring for judicial elections, it behooves us to reflect upon the wisdom of Madison, Jefferson, Hamilton and the other giants that left behind a model of government that has lit up the world for nearly 250 years.
