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Justice Cady's state of the judiciary speech thread

by: desmoinesdem

Wed Jan 12, 2011 at 09:47:32 AM CST


Iowa Supreme Court Chief Justice Mark Cady addresses the Iowa legislature this morning in what will surely be the most-watched ever state of the judiciary speech. Iowa Public Television is carrying the live feed at 10 am, and I'll liveblog after the jump. Cady is the senior justice remaining on the high court, having been appointed by Governor Terry Branstad in 1998. He is also the author of the 2009 Varnum v Brien ruling, which struck down Iowa's Defense of Marriage Act. That decision sparked a successful campaign against retaining Chief Justice Marsha Ternus and Justices Michael Streit and David Baker in November. The four remaining justices chose Cady to serve as chief justice until replacements for Ternus, Streit and Baker have been appointed.

So far 61 people have applied for a position on the Iowa Supreme Court. The current list is here, but more applications may come in by the deadline (January 14). So far applicants include 10 women and 51 men from many different towns and cities of the state. Most are in their 40s or 50s. The few applicants in their 30s include both U.S. attorneys appointed by George W. Bush for Iowa (Matt Whitaker and Matt Dummermuth). One Republican state legislator, Iowa House Judiciary Committee Chair Rich Anderson, has applied as well. The Des Moines Register noted that one applicant, University of Iowa law professor Angela Onwuachi-Willig, submitted a brief in support of same-sex marriage when the Supreme Court was considering the Varnum v Brien case. Another applicant, Michael Keller, has praised that ruling, which allowed him to marry his partner.

State Court Administrator David Boyd told the Des Moines Register that "he was 'very pleased, and maybe a little surprised' with the quality and number of applicants, given the intense public scrutiny on the court since the election." The state judicial nominating commission "welcomes written comments from the public about the qualifications of any of the applicants." After interviewing the candidates, the judicial nominating commission will send a short list of nine names to Branstad, who will fill the three vacancies.

P.S. This week a report by the National Institute on Money in State Politics summarized the independent expenditures in last year's retention campaign. Supporters of retaining Ternus, Streit and Baker were vastly outspent by groups seeking to oust the justices.

UPDATE: Liveblog starting now after the jump. Iowa Public TV will rebroadcast the speech at 9:30 pm on Wednesday.

THURSDAY UPDATE: House Judiciary Committee Chair Anderson seems to be closing the door on impeachment.

Rep. Rich Anderson, R-Clarinda, said he personally believes that the justices' actions in issuing a ruling that in effect legalized same-sex marriage do not meet the standard for impeachment spelled out in the Iowa Constitution: "misdemeanor or malfeasance in office." The court ruled that an Iowa law limiting marriage to a man and a woman was unconstitutional.

He said his gut reaction is that the yet-to-be-filed bill won't make it out of his committee, one of the first steps in the legislative process.

"I don't believe there's any likelihood of impeachment," Anderson said.

I've posted more reactions to Cady's speech from state legislators below.  

desmoinesdem :: Justice Cady's state of the judiciary speech thread
10:01 Big ovation in legislative chamber.

10:02 Senate President Jack Kibbie very briefly introduces Cady. (Kibbie said publicly in 2009 that he opposed same-sex marriage and would support a constitutional amendment to ban it.)

10:03 Cady starts speaking. Thanks for warm reception. Invites everyone to join judicial branch and him in reception in courtroom following today's remarks.

10:04 17 decades come and gone since Iowa first became territory and state. Hope was that government in each decade would allow us to move forward to brighter future for all Iowans. Pursuit of this hope is collectively told by stories that have emerged from Supreme Court courtroom over the decades; promise of equality in our constitution.

10:05 Stories tell history of our struggles to achieve goals; some are familiar to you, others are not well known but important nevertheless. These stories tell why our government and judicial system serve Iowans so well.

10:06 Last fall I stopped by Winnishiek Co courthouse, met with clerk of court and staff. Since one staffer began working in 1983, workload has soared, but staff numbers remained the same; staff often have to come in early, stay late and come in on weekends.

10:07 This worker was not meaning to complain, just expressing concern that heavy workload would lead to mistakes, affecting quality of service Across state court officers and staff believe in what they do, do it well.

10:08 Story of our ability to deliver justice to Iowans over the decades shows that our job will be done regardless of cards we are dealt, but no doubt that our mission is getting harder and harder to achieve. I fear that deep cuts in resources are beginning to cause damage to our system of justice. Concern about decline in access to justice in Iowa. More and more Iowans with legal problems are forced to wait too long for day in court.

10:09 problems are troublesome for litigants and shake people's confidence in system; growing demand for use of system. Thanks legislature and governor for providing funds last year to prevent further cuts and furloughs. We are grateful for that, but it was just temporary fix, hasn't halted continued erosion of court services.

10:10 In past year number of clerk of court offices forced to operate on part-time basis has increased from 26 to 30. Some offices have to close early. Some other offices work full time but have a close a few hours a week to deal with workload. Judicial rulings are sometimes delayed because of lack of court reporters and staff support.

10:11 Reviewing how we got to this point. Judicial branch had to cut its budget five times, and each time cuts were deep. Unlike many state agencies, judicial branch cuts are almost all operating costs (employees, judges). Almost always have to further reduce workload in response to cuts. End result is staffing levels down 17% in last decade.

10:12 Today Iowa's court system operates w/smaller workforce than it had in 1987. Over same period of time the total number of actions brought by Iowans and businesses has nearly doubled. Courts overrun with work, Iowans pay price in reduced access to justice. Praises strong work ethic of judges, magistrates and court staff, but that can't totally shield Iowans from effects of past decade of budget cuts.

10:13 As we struggle with obstacles, we have moved forward to find innovative ways to improve access to justice. Testing system for electronic filing and retrieval of documents. Would save Iowans money and inconvenience of having to travel to courthouses to do business. Gives judges access to documents as soon as they are filed. If it works and we have adequate funding, we could implement this system across state in five to six years.

10:14 Experimenting with civil justice reform to allow some cases to move forward faster (dedicated business court, alternative dispute resolution services, etc.) Hope to have road map for civil justice reform later this year

10:15 We want legal system that can respond to needs of modern society. Should improve Iowans' access to justice, but these changes alone won't give Iowans all the access to court services that they need. Court employees are essential to administration of justice throughout state.

10:16 We understand state's continuing fiscal difficulties and tough choices, but there are many reasons to bolster court services in these hard times. Recession has increased demand on courts: mortgage foreclosures up 17%, debt collection up 15%, child in need of resources cases up 23%, etc. These have life-altering effects on Iowans, not the time to hand out ration cards for justice.

10:17 Cady talking about treatment for abused and neglected children and youth. Quotes official in Marshalltown: Front-end kids are no longer being served, or if served, not served well. We get those kids later when problems are bigger. Lack of manpower and funding means kids sit in detention or shelter too long waiting for appropriate residential treatment. Seem to have less success when they come back from placement. Long-term effects will show up later.

10:18 Iowa's underfunded mental health system places greater demands on courts. Court staff often spend hours on telephone trying to locate placement for person who has been involuntarily committed. This problem also calls for more resources.

10:19 Iowa's economic health provides another reason for you [legislators] to provide funds for more court services. Studies in CA, FL suggest well-funded court system contributes to economic health. Court delays and closed offices add to the cost of doing business in this state, inhibit business expansion. Vibrant bus community requires vibrant court system.

10:20 We understand that courts must share in pain, but I hope we can all agree that Iowans need justice. Budget request reflects modest 3-year plan to approve Iowans' access to justice. Ask that you give this careful consideration.

10:21 Now addressing challenge that threatens balance of power that protects constitutional rights. Talks about Varnum v Brien case. Says we understood case would receive attention and be subject to close scrutiny. Worked hard on written decision to fully explain our ruling, we understand how Iowans can reach different opinions about the decision. In many ways, public discourse is what was expected.

10:22 The period of time following a decision is what gives shape to tomorrow's understanding; discourse is not new for Iowa, although I doubt it has ever been so strong. Our court, Iowa Supreme Court, has many times decided questions on civil rights that were once controversial. Yet over time those cases have become celebrated part of proud, rich Iowa history of equality for all. (first time speech interrupted by applause--lengthy applause)

10:23 I know not how this debate will end, but I do know our constitution will continue to show us the way, as borne out by our history. Constitutional work by the court on this matter is complete; history will be written one way or the other by your hand and the hand of the people of Iowa.

10:24 To help move forward to write this history, I want to address certain misunderstandings about the role of the court in our system of justice. Hoping his words today will help redirect the path. Wants us to move forward to address concerns about system of selecting judges.

10:25 Iowa has the best method in the nation for selecting its judges. Merit selection must be maintained today to permit us to move forward to a better tomorrow (explains how system works; adopted in 1962 constitutional amendment to minimize influence of politics)

10:26 Focuses on 15-member state judicial nominating commission. Describes how people are appointed to that commission. Some selected by governor, others selected by attorneys. Constitution requires that commissioners be chosen without regard to political affiliation.

10:27 Non-partisan nature of judicial nominating commission has been questioned at times; sometimes does shift from Democrats to Republicans. This is not because lawyers select some members of commission; lawyers select their members on that commission through ballot that doesn't mention party ID.

10:28 Non-lawyers on commission are selected by governor, but even if governor chooses people who share his/her party affiliation doesn't mean that people are chosen because of party affiliation. In 1980s Democrats in Iowa legislature suggested requiring partisan balance on all judicial nominating commissions, but that measure was rejected, and system was left in place.

10:29 Party affiliation doesn't affect commissioners' ability to do job; they care about good government, maintaining Iowa's fair and impartial courts. They have selected most qualified nominees. I have had privilege of chairing this commission in recent years and have seen people come together to nominate best candidates for vacancies on appellate courts.

10:30 Quotes former member of nominating commission from 1990s; he said he may have rooted for the home team but always voted for most qualified candidates.

10:31 What really matters is commitment of each commissioner and governor to spirit of merit selection and goal of maintaining fair and impartial courts. Surveys conducted for US Chamber of Commerce have consistently ranked Iowa judges as most fair and impartial in country. Last year fourth in nation. Academic studies suggest Iowa Supreme Court has become one of the most influential state supreme courts in country

10:32 Other supreme courts often cite our supreme court; Iowans want good government, and our fair and impartial courts are model for this.

[I have to pause the liveblog, will pick it up again later]

UPDATE: I had to step away from my computer during the most interesting part of Cady's speech. From Kay Henderson's excellent liveblog:

Next, Cady directly confronted critics.  "In our government, courts are legal institutions, not political institutions," he began.  "...Public opinion shifts.  The will of the people, followed by the courts, is the will expressed by our law, as constrained by the written principles of the constitution."  He got applause for this statement from some.  A few Republicans who remained seated applauded.

"Unlike our political institutions, courts serve the law.  They serve the law, not the interests of constituents, not the demands of special interest groups and not the electorate's reaction to a specific court decision," Cady said.  This got applause, an ovation from some in the room, and some whistles and cheers from the gallery where the public is seated. (Cady added that last phrase - "not the electorate's reaction to a specific court decision" to the prepared text released at 10:30 a.m.)

Next up, Cady's defense of "judicial review" which he described as "well documented."  Cady drew applause from supporters in the crowd when he said the words of the constitution constrain all laws that follow.

He talked about the "peculiar province" of the courts, saying it had been settled in 1803 - Marbury v Madison.  Cady said in 1849, the Iowa Supreme Court issued its first decision that protected the constitutional rights of an Iowan by invalidating a law passed by the legislature. "This is the very duty this court exercised in the Varnum decision," Cady said, to more applause.

The court has declared acts of the legislature unconstitutional just over 150 times, according to Cady, who added those cases haven't received the attention the Varnum decision did.  Cady also cited the recent Citizens United case before the U.S. Supreme Court, which saw the court - via judicial review - invalidate a federal law.

"I hope my remarks this morning will lead to a more accurate and complete understanding of the court's proper constitutional role," Cady said.

He next addressed critics who said the court should have suspended its ruling on Varnum to give the legislature time to react, draft a new law, set up a statewide vote on a constitutional amendment banning gay marriage.  Cady said the court hasn't done that since 1883. "As we said in Varnum, our constitution speaks with principle, and so do we," Cady said.  He drew out the last phrase of that sentence and his supporters/like-minded people in the crowd stood to applaud.

UPDATE: Radio Iowa got reaction from some state legislators:

State Senator Kent Sorenson, a Republican from Indianola, is among Cady's critics. "He threw a match on the tinder box, in my opinion," Sorenson said after the speech.  "...I think he made a foolish mistake by addressing this issue in front of the chamber and I wouldn't have done it if I was him."

Three rookie Republicans in the Iowa House who are drafting articles of impeachment refused to comment after the speech. Sorenson suggests impeachment is more rather than less likely after Cady's remarks this morning.

"I would have let sleeping dogs lie," Sorenson said. "But obviously he wanted to throw it out there for everybody and I think he made a grave mistake."

Senate Democratic Leader Mike Gronstal wore a sticker that said, "Support our Courts" during the address. "I thought it was a great speech," Gronstal said. "I thought it was something that corrected some of the misperceptions amongst the public about the role of the courts and what their job is."

House Speaker Kraig Paulsen, a Republican from Hiawatha who is an attorney, isn't sure what impact Cady's speech may have on the move to impeach Cady and the other justices.

"I thought his speech was thoughtful.  I thought it was good," Paulsen told reporters immediately after Cady's address. "He stood up for his branch of government. That's his job."

James Q. Lynch collected these reactions:

"I think he threw a match on a tinderbox," said Sen. Kent Sorenson, R-Indianola, who remained seated when other lawmakers stood at the conclusion of Cady's speech. He thought it was a "foolish mistake" to bring up the Varnum v. Brien decision.

"Yesterday, I thought talk of impeachment was premature, but after today, I have to rethink that," Sorenson said.

Rep. Dwayne Alons, R-Hull, said Cady did nothing to defuse the impeachment effort that "is kind of brewing now about this whole decision."

"We'll just have to see what transpires and how vocal people will become across the state," he said.

One of those who has been vocal on the issue, Bob Vander Plaats, president and CEO of The Family Leaders, said there's still time for the justices to resign. If they don't, he added, "some legislators will take a hard look at whether there are grounds for impeachment."[...]

Sen. Mark Chelgren, R-Ottumwa, was disappointed Cady showed such little understanding of the justices' role under the Constitution.

Although it is the court's responsibility "to strike down a law that they believe to be unconstitutional," Chelgren said the voters are the "final arbiters."

"Therefore, the very effect of getting rid of three Supreme Court justices is the essence of our Constitution, which they have sworn to uphold and protect just as I have," he said.

[...]

While he gave Cady high marks for his "assessment of the courts and their roles as a determiner of constitutionality," House Judiciary Chairman Rich Anderson, R-Clarinda, said that with respect to the Varnum case, "there is a difference of opinion even in the courts regarding that issue."

"The question of constitutionality on any issue is often in the eye of the beholder," he said. "Because you see high-level courts reaching different opinions ... there remains a division in the courts and in the people and that division is reality and we as policymakers have to work with that."

And the Des Moines Register's Grant Schulte collected more quotable quotes:

Some Republicans in the Legislature said Cady's remarks were condescending. Sen. Kent Sorenson, R-Indianola, said the chief justice "came in here with a pompous, arrogant attitude and tried to give the Legislature a history lesson."

"You come in here and you make a speech like that - well, you saw the reaction," Sorenson said. "I don't think it was received very well when he started going down that road."

Sen. Merlin Bartz, R-Grafton, said Cady "just poured a five-gallon can of gasoline on the fire" - a line that was echoed by other Republican lawmakers.

Bartz said Cady acted in a political manner when he waved to supporters in the public balconies after his speech and when he mentioned the marriage ruling.

"I think he frankly should have been silent on the decision," Bartz said. "Sometimes you have to leave the elephant stand in the room and just not discuss it."

UPDATE: Mr. desmoinesdem declared this to be Kathie Obradovich's worst column ever:

Cady delivers civics lesson but lacks emotional appeal [...]

But the retention election seems to have entrenched Iowans' views - you could almost hear the creak of the door closing on an empty barn. It will take a sustained effort over time to shift Iowans' understanding of the court's responsibility and authority. [...]

Civics lessons and legal history answer some questions about why the court acted as it did in voiding Iowa's marriage law without further input from lawmakers. But what Cady failed to address was the emotional argument that court critics like Bob Vander Plaats have used to great effect: That justices are elitist, set apart from the public and bent on imposing their own warped moral code on the rest of us.

Those class-war arguments will continue to make headway until Cady and those who support merit selection find a way to humanize their arguments. Pointing to the acceptance over time of civil-rights rulings does little today for those who fear the erosion of the nation's moral bedrock.

So now it's not enough for the chief justice of the Supreme Court to express a sound legal argument--he has to sell himself like an elected official, hitting the right emotional touchstones to persuade the voters?  

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