Yesterday, I posted a quick comment on an ad released by proponents of proposition 8 – the California constitutional amendment that would undo same-sex marriage gains in the State.

Today, news reports warn that the opposition to proposition 8 is losing the money game, 27 million to 19 million.

Some of that money is being used to fund a television ad attacking California Supreme Court Justices for ignoring, “four million voters and impos[ing] same sex marriage on California.”

It’s an issue ad that sounds a lot like a negative campaign tactic. In 2010, the next gubernatorial election, two of the eight Justices of the California Supreme Court and 22 Justices of the Court of Appeal will face a re-election campaign.

That means that they are going to be worried about making decisions that garner exactly the kind of negative public attention as that surrounding same-sex marriage.

Judges are agents of a branch of government concerned solely with imposing the rule of law as fashioned by elected representatives. Even if the law says unpopular minorities deserve equal rights, the judge must uphold it.

Protests outside of courthouses shouldn’t matter in the face of the letter of the law. Negative television ads shouldn’t matter in the face of constitutional language that provides equal treatment for all citizens.

Proposition 8 is exactly the kind of remedy the American constitution envisions.

If you don’t like the law and the impartial arbiters who enforce it, then have it changed. But campaigning in a way that suggests that judges of the Supreme Court should have considered voter approval undercuts the purpose of the judicial branch. It also exposes a considerable weakness:

If judges must run for re-election, even if it is only once every twelve years, they will, at more than one time in their career, look to opinion polls, public perception and special interest lobbyists.  Just like our presidential candidates are doing right now.

Those kinds of election pressures made candidates who potentially support gay marriage, refuse to publicly endorse it. 

If we want judges to worry about the law, not the public misunderstanding of it, we need to give them the security of appointment without the pressure of elections. If they abuse their power, fail to fulfill their duties, then they should be reprimanded in exactly the same way as other appointed government officials.