Iowa Chief Justice: retention elections will test commitment to impartial judiciary

Shortly after the Iowa Supreme Court unanimously cleared the way for same-sex marriage rights in April 2009, prominent social conservatives in Iowa vowed to vote out three Supreme Court justices who face retention elections in November 2010. Those are Chief Justice Marsha Ternus and Justices Michael Streit and David Baker.

Judges do not campaign actively for retention, but today Ternus commented on the upcoming elections during an Iowa Public Radio appearance. (continues after the jump)

“I am confident that the people of [Iowa] want to retain the system that we have and make it work the way it was intended to work, and that is on a merit based system, not as a referendum on any particular decision that a judge might make,” Ternus says. She says people need to be reminded that the court was intended to be the non-political branch of government.

Ternus says, “It’s easy to take what we have for granted but I think each generation has to stand up for what they believe in and for the integrity of the system for a fair and impartial judiciary and that will be our test this year, to see if Iowans stand up for the system that we have.”

Many voters don’t make it all the way down the ballot to the judges, but those who do usually vote for retention. The Iowa State Bar Association evaluates all judges up for retention, based on surveys filled out by attorneys who have appeared before each judge in court. In 2008, the state bar gave all 60 Iowa judges on the ballot “high marks for their performance and demeanor.”

The last organized effort to defeat an Iowa judge at the ballot box was in 2004, when conservatives failed to oust Woodbury County District Court Judge Jeffrey Neary. He had angered the religious right by granting a divorce to a lesbian couple who had had a civil union in Vermont.

I’m concerned about the upcoming retention votes for two reasons. First, many opponents of the Varnum v Brien ruling are passionate about their cause. In December, I attended a talk by Professor David Redlawsk, who has been involved with public polls on gay marriage in Iowa, New York and New Jersey. He noted that in Iowa, those who oppose same-sex marriage rights are more likely than supporters to say the issue is very important to them. It’s quite different from New York and New Jersey, where supporters of marriage equality tend to attach more importance to the issue than opponents do.

Second, the judicial retentions may become a focal point for religious activists who are uninspired by other Republicans on the ballot. Some social conservatives have already said they will not support Terry Branstad for governor, and if he wins the GOP nomination, they may volunteer for other political causes. Branstad has said he disagrees with the Varnum v Brien ruling but has not called for voting any Supreme Court judge out of office.

Last weekend, Iowa Family Policy Center chairman Danny Carroll and Brad Clark of the LGBT advocacy group One Iowa appeared on Iowa Public Television’s “Iowa Press” program. I was surprised to read, “Both men said their respective groups would NOT get involved in the judicial retention elections this November.” That’s the opposite of what Carroll indicated at a rally last April:

“This is only the beginning,” said Danny Carroll, a former legislator and now chairman of the conservative Iowa Family Policy Center. “We will remember and we will remember in November.”

Chuck Hurley, also a former legislator and president of the policy center, noted that in addition to legislators and Gov. Chet Culver, three Iowa Supreme Court justices would face retention elections next year.

That includes Chief Justice Marsha Ternus.

“Maybe she will know how it feels after November of 2010,” said Hurley.

Justices Michael Streit and David Baker also will be up for retention elections next year. The Supreme Court struck down the state’s gay marriage ban on a 7-0 decision.

“Three judges on the ballot. We will remember next November,” Hurley said. “You are not fooling anyone.”

I hope the Iowa Family Policy Center has decided not to get involved in the retention elections, but I wouldn’t count on that. If they mobilize their supporters against the Supreme Court justices, who will take on the task of fighting for retention? I doubt that a majority of Iowans want to throw out the judges, but some public education may be needed to remind the average voter to fill out the whole ballot. The justices themselves won’t be campaigning, and there’s no statewide advocacy organization that I know of with the resources to run a strong campaign on behalf of judicial independence.

Share any relevant thoughts in this thread.

  • With a motivated electorate

    it might be a tough retention bid.  

    If they don’t get retained, would Culver or his replacement get to nominate new justices?

    • that's a good question

      I think it would have to be the governor elected in 2010, because the statewide judicial nominating commission would have to submit lists of nominees to the governor first. The way our process works, the governor can’t just pick whoever he wants as a judge.

      I don’t know how that would work in terms of the Iowa Supreme Court conducting its business, though. Presumably there would be many cases for which Ternus, Baker and Streit had been present for oral arguments. You couldn’t expect new appointees to rule on those cases.

    • Johnson county example

      We had a situation in Johnson county a few years ago, where a state judge was having an affair with an attorney who frequently appeared before his court.  Even though it was widely publicized only a few weeks before the election, he still got 70% for retention.  I can’t imagine what it would take to actually defeat a sitting judge.

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