For better or worse – usually worse – the majority of states choose judges by popular vote, either initially or in retention elections following appointment. In a number of races around the country, the pro- or anti-gay positions of candidates for judicial office have become part of the debate.
The best known example is Iowa Supreme Court Justice David Wiggins, who is under concerted attack in his retention race because he joined the opinion in Varnum v. Brien, which required the state to grant equal marriage rights to gay couples. Two years ago, three of his former colleagues on the bench were defeated for retention after conservatives mounted a campaign against them because of their roles in Varnum (which was unanimous). This time, the state’s legal establishment has rallied more effectively to defend judicial independence. Polling shows that a close race is likely. And the impact isn’t just hypothetical: lgbt rights cases continue to arise in Iowa state courts.
Less famous but also subject to attack from right-wingers is Illinois Circuit Court Judge John Schmidt, who ruled that Catholic Charities was required to abide by a state law allowing same-sex partners to adopt a child. Illinois Family Action, a conservative religious lobbying group, has funded 25,000 robo calls to homes in the central Illinois district where Judge Schmidt sits, asking residents to vote against him.
Celebrity from the opposite political direction clings to former Alabama Chief Justice Roy Moore, who is running to regain that seat. Moore was forced off the court in 2003 when he refused to obey a court order requiring him to remove a monument to the Ten Commandments that he had installed in the court’s building. Last month he declared that gay marriage would be “the ultimate destruction of our country.” Obviously — it caused Hurricane Sandy. You did know that, right?
In other places, openly LGBT lawyers are running for judgeships, adding to the steadily increasing number of openly gay men or lesbians who are on the bench. Most prominently, two lesbians are on the ballot for the Oregon Supreme Court. Justice Virginia Linder, an incumbent, is unopposed in her retention election. Nena Cook, an attorney in private practice in Portland, is running for an open seat. Openly gay Rives Kistler is also a current justice. If Cook wins, three of the seven justices would be gay. Pretty amazing.
Lastly, there are at least half a dozen openly lgbt candidates for state trial court judgeships around the country, all endorsed by the Victory Fund:
- In Florida, incumbent Judge Darrin Gayles is on the ballot for retention as a judge in the 11th Circuit state court;
- In Illinois, incumbent Judge Andrea Schliefer faces a contested race to keep her position on the 12th Subcircuit of the Cook County Circuit Court, and attorney John Dalton is running against the incumbent Sixteenth Circuit Judge, based in Kane County.
- Michigan also has two openly gay candidates: attorney Ken Ross is seeking to become a judge of the 30th Circuit Court in Ingham County, and Carol Kuhnke is running for a Circuit Court judgeship in Washtenaw County (Ann Arbor).
- Lastly, in Washington state, Elizabeth Berns is running for an open seat on the King County Superior Court.