The current controversy was prompted by mass outbreaks of judicial activism. One was opposition to the Iowa supreme court's decision mandating same-sex marriage. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). Another was generated by various Colorado supreme court rulings allowing tax hikes without the required voter approval. Several citizens groups and politicians have campaigned to oust judges in those two states, where they are elected or subject to voter "retention."
The media reports the efforts as an attack on democracy: "the peril of subjecting judges to voters' whims" (WaPo); "public opinion can’t decide court cases" (Des Moines Register); "judicial retention system is "under attack" and its future may depend upon the efforts of supporters who want to keep the courts insulated from political influences" (Globe Gazette); "outside forces mix money and message" (Quad-City Times); "GOP's war on courts could result in partisan judges" (Iowa Independent). But the mother of all scare stories was in Saturday's New York Times:
Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race. . .As usual, the media have it backwards. The issue is whether the judges substituted their own views for the mandate of the relevant law or constitution. New policies are supposed to be passed by the legislature or, in referendum states, the people, not by fiat of the judiciary. Yet many on the left prefer elite compulsion to electoral choice.
Supporters of the judges, including most of the legal community here as well as a number of prominent Republicans, describe the campaign as punitive and suggested that if voters want to abolish same-sex marriage they should call a constitutional convention, a matter that is also on the ballot, or pressure the legislature to amend the constitution.
Regardless of one's view on gay marriage or other current controversies, with certain narrow exceptions, they should be decided by majority vote, not law suits. The Times bemoans transforming judges into politicians. Well, whose fault was that? As Matthew Franck says on Bench Memos:
This is what happens when the judges cease to be apolitical--the case of Iowa, at the center of the Times story, is a clear instance. When the judges betray their trust, the people should remove them. What is either surprising or alarming about this?