Judicial Accountability, 2005

Since the early days of the nation there has been a recurring concern about holding unelected judges accountable to the Constitution. Prior to 1974, biennial elections of judges by the General Assembly ensured judicial accountability. Judges who for any reason displeased a majority of the General Assembly were often denied reelection. In that year, urged on by the legal profession and bench, the people ratified a constitutional amendment (Ch II, Art 54) that changed the process. The new process requires a majority of the General Assembly (House plus Senate, voting together) to reelect sitting judges every six years for additional six-year terms.

Judges seeking reelection in 2005 – including all five justices of the Supreme Court - will notify the secretary of state in September 2004. A Judicial Retention Committee, composed of four Senators and four Representatives, will review the records of the judges and reports its findings to the General Assembly. Since 1974 only one judge has been denied reelection, in 1993, on an 86-87 vote. (No Vermont judge has ever been impeached, a wholly different process.)

There are no defined standards for judicial reelection. It is universally agreed that inability to perform, criminality, insanity, senility, absenteeism, favoritism and corruption are grounds for refusing reelection. The bench and bar insist, however that beyond these considerations legislators may look only to judicial temperament, courtroom etiquette, and efficient conduct of the court’s business. But others say it is the responsibility of the legislature to consider whether Justices have remained faithful to their oath of allegiance, in which they swore “not to do any act or thing injurious to the constitution”.

In two constitutional cases, Brigham (school finance, 1997) and Baker (homosexual marriage, 2000) the Court invented from thin air two constitutional provisions never suspected to exist by judges, legislators, and lawyers over the past 200 years: an individual right to enjoy “substantially equal” tax bases for education, and a right of same sex couples to “all or most” of the benefits of marriage. In both cases the Court put a judicial gun to the head of the elected legislature until it capitulated and enacted Act 60 and the civil unions law. Not only did the Court in effect invent its own Constitution based on the Justices’ political preferences, but it also defied the Constitutional requirement that the three branches of government shall be “separate and distinct”.

Two of the Justices up for reelection in 2005 –Justices John Dooley and Justice Denise Johnson – were parties to both of these Supreme Court decisions. Many citizens will be asking legislators elected in November to restore judicial accountability by refusing to reelect Justices Dooley and Johnson. Only in that way, they believe, can the people reclaim their Constitution before judicial activists use it to impose more of their political views on the people.