Case against Iowa Supreme Court justices hits tv screens

Iowa for Freedom, the group seeking to oust three Iowa Supreme Court justices this November, began running a statewide television commercial on Monday.

The ad echoes language Iowa for Freedom chair Bob Vander Plaats used during his gubernatorial campaign, and it reflects the same failure to understand the judicial review process.

The video and transcript are after the jump, along with an update on the counter-effort to protect judicial independence in Iowa.

My transcript:

Activist judges on Iowa's Supreme Court have become political, ignoring the will of voters and imposing same-sex marriage on Iowa. Liberal, out-of-control judges ignoring our traditional values and legislating from the bench, imposing their own values on Iowa. If they can usurp the will of voters and redefine marriage, what will they do to other long-established Iowa traditions and rights?

Three of these judges are now on the November ballot. Send them a message. Vote no on retention of Supreme Court justices.

You'd think there was something unprecedented about a Supreme Court striking down a law. In reality, American courts have been reviewing laws for more than 200 years. It's not "legislating from the bench" for judges to declare a law unconstitutional. Conservatives cheer the same outcome when a court throws out something they hate, like Washington, DC's handgun ban. Republican attorneys general in more than a dozen states are trying to get part of the new health insurance reform law nullified by the judiciary, even though the duly elected Congress approved that law.

Furthermore, the Iowa Supreme Court's Varnum v Brien decision didn't "redefine marriage" for religious groups. The state of Iowa is not permitted to deny civil marriage rights to same-sex couples, but the court explicitly stated that churches are not required to perform or recognize same-sex marriage.

When the ad's voice-over mentions "other long-established Iowa traditions and rights," the viewer sees a group of children holding their hands over their hearts (apparently looking up toward a flag), a scene that looks like a mother teaching her daughter, and a group of men in hunting gear. The images are meant to stoke fears that a runaway Iowa Supreme Court will ban the pledge of allegiance in schools and take away the rights of homeschoolers and gun owners. Bob Vander Plaats' stump speeches often included similar warnings about the court going after basic freedoms.

If Vander Plaats had anything to back up his scaremongering, you'd think he could point to instances in which Iowa judges eroded other rights. Chief Justice Marsha Ternus has served on the high court since 1993. If she has any record of hostility toward hunters, homeschoolers and flag-respecters, show us the evidence.

The commercial plays a scary soundtrack while showing the names and photos of the judges up for retention. You'd think Ternus and Justices David Baker and Michael Streit were invading aliens, as opposed to lifelong Iowans who are active with Rotary and the YMCA, volunteers with their sons' scout troops, and members of their local Catholic parish.

The Republican Governors Association reportedly agreed to support the anti-judge campaign in Iowa, but this commercial identifies Iowa for Freedom as a project of AFA Action and the National Organization for Marriage. AFA Action is linked to the American Family Association, which announced plans to "put a couple of hundred thousand dollars" into the campaign against Iowa judges. The National Organization for Marriage was heavily involved in the campaigns for California's Proposition 8 in 2008 and Maine's Proposition 1 in 2009. Both those ballot initiatives successfully overturned same-sex marriage rights. The National Organization for Marriage also spent approximately $90,000 on the 2009 special election in Iowa House district 90, but their favored candidate, Republican Stephen Burgmeier, lost narrowly.

Jason Hancock reported today that the American Family Association "has already spent nearly $60,000 on Iowa for Freedom," not counting the cost of running the new television ad.

Here's what concerns me most about the commercial: it shows the viewer what the retention portion of the ballot will look like and clearly indicates that they should mark "NO" if they want to send judges a message.

There won't be any comparable media campaign urging Iowans to vote "YES" on retaining the Supreme Court justices. The Iowa Bar Association helped create a group called Iowans for Fair and Impartial Courts ( to do voter education. However, that group is a pending 501(c)3 organization, and therefore can't engage in direct election advocacy. In other words, Iowans for Fair and Impartial Courts can run ads praising Iowa's judicial independence and current system of merit selection for judges, but they can't ask voters to support the judges who are on the ballot in November. It was a mistake to set up the pro-judicial independence effort as a 501(c)3.

Maybe John Deeth is right, and loud reminders to vote NO on the judges will backfire by reminding the majority to vote yes (as they usually do in retention elections). I'd feel more confident if someone were directly making the case for retaining Justices Ternus, Baker and Streit.

UPDATE: The National Organization for Marriage is spending at least $235,000 on this television advertising campaign. American Family Association Action has spent at least $200,000 on the campaign against retaining the judges; it's not clear how much of that money paid for television commercials.

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