Before the November election, advocates for retaining the three Iowa Supreme Court justices on the ballot warned that throwing out the judges over one controversial decision would bring more politics into the judicial arena. The new debate over impeaching the four remaining Supreme Court justices shows that’s exactly what has happened.

In 2009, calls for impeaching the Supreme Court justices were a bridge too far even for Bob Vander Plaats, Iowa’s leading critic of the Varnum v Brien ruling. Now newly-elected Republican State Representatives Tom Shaw, Kim Pearson and Glen Massie are drafting articles of impeachment to introduce during the 2011 legislative session.

So far not one GOP official has spoken out against using a controversial ruling as grounds for criminal proceedings against four judges.

JANUARY 3 UPDATE: Governor-elect Terry Branstad finally spoke out against impeaching the remaining Supreme Court justices. Click the link or scroll to the bottom of this post to read his comments.

Several commentators, from the Cedar Rapids Gazette’s Todd Dorman to the conservative Sioux City Journal editorial board, have criticized the new campaign against the justices. Impeachment should be used against judges who committed crimes (like taking bribes to influence rulings), not as retribution for an unpopular opinion. Not only was Varnum v Brien a unanimous ruling, its interpretation of the constitution resembled several other state high court rulings on marriage. Disagreeing with a judge’s view of the equal protection clause doesn’t make a case for “malfeasance.” Nor did state officials abuse the separation of powers by implementing the ruling on marriage. Even The Iowa Republican blog’s publisher Craig Robinson can see that.

Elected Republican officials have so far avoided expressing similar views.

Iowa House Speaker Kraig Paulsen said last week that he is open to impeaching the justices if “the people” demand it. The number two Iowa House Republican, Linda Upmeyer, said “she wanted to get a better understanding of the legal definition of what constitutes ‘malfeasance’ and discuss the issue with her 60-member Republican caucus before deciding how to proceed” on impeachment. State Representative Rich Anderson, who will chair the Iowa House Judiciary Committee, was non-committal about the idea:

“I think it reflects a broad-based public reaction to the same-sex marriage issue, like we saw in the recent election,” he said. “One can understand the argument that is being made… There’s a growing sense that government – at all levels – has begun to overstep its bounds, and we’re starting to see a broad, grassroots pushback.”

Articles of impeachment would have to clear the Judiciary Committee before they could be considered on the House floor. Anderson could bury the impeachment drive early, depending on who he puts on the subcommittee that will consider the bill. For now, he sounds skeptical about the constitutional argument impeachment advocates are making:

   Anderson said “judicial activism” is a term bandied about in political speeches, but noted his own experience as a lawyer shows that judges have historically had the power to not only interpret laws, but to “fill in the gaps” when necessary, effectively making law – common law, as opposed to statutory law – when they did so.

Governor-elect Terry Branstad could probably tip the scales against impeachment in the House, if he came out forcefully against calling a judge a criminal because you disagree with one decision. Or, if he didn’t want to go that far, he could at least urge lawmakers to focus on critical fiscal and economic issues during the legislative session. Instead, we get this profile in cowardice:

“I haven’t researched that,” Branstad told reporters. “The governor doesn’t have a role in that. I’m got many things on my plate, so I have not looked into that at all. This is a separate branch of government and I’ve got enough on my plate not to get into that one, so I don’t intend to comment on it.”

Perhaps it was politically savvy for Branstad not to take a position on retaining the Supreme Court justices during the campaign, but his conflict-avoidance looks weak now that the election’s over. Even if the Iowa Senate would never vote to convict the judges, Branstad should recognize that impeaching judges over one ruling sets a bad precedent for political interference with judicial matters. That will affect his future appointees to the Supreme Court and lower courts.

To my knowledge, Iowa Senate Minority Leader Paul McKinley hasn’t expressed an opinion on impeaching the justices. He should understand that a Senate trial would be a waste of time, but newly-elected State Senator Kent Sorenson is determined to help get the impeachment ball rolling. McKinley probably isn’t eager to cross the hero of the Republican right.

Privately, some Republicans appear to be concerned about abusing the impeachment process. Craig Robinson wrote today that a “number of people,” including “current and former legislators,” thanked him for writing this post calling impeachment “an unnecessary distraction.” Robinson argued that Shaw, Pearson and Massie

have yet to put forward any proof that the justices stepped outside their constitutional bounds and violated any criminal provision of the law by issuing their opinion on the constitutionality of DOMA.  To impeach, you must show a “misdemeanor” or “malfeasance.”  That means stealing money or taking kickbacks or throwing cases for personal gain, not just interpreting the constitution poorly, which they did.

How hard would it be for one of Robinson’s grateful readers to say that out loud?

It’s striking that Iowa’s most powerful elected Republicans are afraid to criticize the efforts of a few inexperienced state legislators. I know that Pearson, Shaw, Massie and Sorenson have powerful allies, including WHO drive-time radio host Steve Deace. But at some point, some Republican will have to take a stand, or else impeachment will become a fiasco during the legislative session.

What do you think, Bleeding Heartland readers? Who will be the first Republican politician to call for abandoning the impeachment drive?

UPDATE: On January 3 Branstad did speak out against impeaching the remaining Supreme Court justices:

In a wide-ranging interview, Branstad said he disagreed with the court’s marriage ruling but he also disagrees with a band of House Republicans who have indicated they are drafting articles of impeachment against Justices Brent Appel, Mark Cady, Daryl Hecht and David Wiggins. Three other members of court – Chief Justice Marsha Ternus and Justices David Baker and Michael Streit – ended their terms Dec. 31 after they lost their retention votes in the Nov. 2 general election.

Branstad said he believes the unanimous court “over-reached” when the justices struck down as unconstitutional the Defense of Marriage Act he signed in 1998 that defined marriage in Iowa as only between one man and one woman. The 7-0 ruling in April 2009 had the effect of legalizing civil marriages between couples of the same gender.

“I think if you look and read the Constitution, which I have, I think it’s pretty obvious. The Constitution says what the grounds for impeachment are. My reading is it’s not there,” Branstad said. “There’s a difference between malfeasance and over-reaching, I think. I really think that if people look at the Constitution, I think the remedy is that when they come up for retention that people have a chance to vote them out. I think that’s the appropriate remedy. I don’t think that impeachment is the appropriate remedy.”