Fallout from last month's vote against retaining Iowa Supreme Court Chief Justice Marsha Ternus and Justices Michael Streit and David Baker continues to make the news almost daily.
Follow me after the jump for links and analysis on the timetable for replacing Ternus, Streit and Baker, efforts to change Iowa's system for choosing judges, political pressure on the remaining justices, and how the retention vote will affect the 2012 elections.
Choosing new judges
Four justices will remain on the Iowa Supreme Court once Ternus, Streit and Baker complete their terms at the end of this month. Those four justices have chosen Mark Cady to serve as chief justice beginning in January. Cady is the longest-serving member of Iowa's high court, having been appointed by Governor Terry Branstad in 1998. He also wrote the April 2009 Varnum v Brien ruling on marriage that sparked the anti-retention campaign. Once the court has seven members again, the justices will hold another vote on who will serve as chief. My money's on Cady keeping that position.
Cady had been the Iowa Supreme Court's representative on the judicial nominating commission. His move to chief justice puts the next most-senior justice, David Wiggins, in that position. Earlier this month, Wiggins spoke out on the retention vote:
"Although I'm disappointed with the results of the last retention election, I am not going to second guess its results. It is what it is. It's now time for the court to move on," said Wiggins as a participant in a forum sponsored by the American Constitution Society that drew about 50 people for a discussion of the retention election and future of Iowa's merit-based selection system and judicial independence. [...]
Wiggins praised his outgoing colleagues as intelligent people of exceptional integrity.
"I've never at any time experienced one of these individuals trying to try a case on their personal views, but rather attempting to decide the case based on the framework of the law and the constitution," he said. "I will truly miss them as colleagues. That being said, I think we need to move on."
Last month, outgoing Governor Chet Culver said he would exercise his authority to appoint new Supreme Court if he received a list of names from the Judicial Nominating Commission before leaving office. This week the commission closed the door on that option, announcing that it will accept applications to serve on the Supreme Court through January 14, the day Branstad is scheduled to be inaugurated. Commissioners will interview applicants the week of January 24 and submit a list of nominees to Branstad soon after.
Commissioners were wise not to rush the selection process in order to get names to Culver before mid-January. New Iowa judges come up for retention in the first general election after they are appointed, so letting Culver name the justices would set the stage for another major anti-retention campaign in 2012. Conservatives would denounce the new appointees as illegitimate. Branstad and other Republicans have said repeatedly that the governor Iowa voters rejected shouldn't choose replacements for the judges Iowa voters rejected.
In an apparent effort to pre-empt criticism of the selection process, the Judicial Nominating Commission will make more information about the applicants available to the public than ever before:
State Court Administrator David Boyd, who also serves as secretary for the Judicial Nominating Commission, says the commission's work will be more transparent than in past years. "We're specifically looking at streaming the interviews on the internet," Boyd said.
Commission member Guy Cook, a Des Moines attorney, says each candidate's background will be public too. "The commission has decided to open that process more so that the applicants' background, experience and qualifications are available for anyone to see," Cook said. In the past, only candidates' names and ages were publicized.
Cook believes the changes will boost public confidence. "Transparency is good and opening up this process will enhance our work and demonstrate that commission members carefully and thoughtfully look for the best candidates," Cook said.
Branstad said Iowans want justices with "more judicial restraint" who won't overstep their bounds in the future. "The Supreme Court, I think, made a tragic mistake in their decision on same-sex marriage," he said. [...]
Branstad said he will not grill justice candidates specifically about their feelings about the ruling, but he will ask about their "philosophy with regard to the separation of powers" between the judicial, legislative and executive branches.
"I want to hear that people respect the genius of our founding fathers in this state and this country when they devised a system with clear separation of powers, and recognize that the powers of the judiciary are restricted," he said.
"They need to respect that on issues like this, it's really the Legislature that has the responsibility, and if the Legislature has made a mistake, the courts can indeed send it back to Legislature to be corrected."
I've heard this "let the legislature correct it" argument from various Iowa conservatives in the past year and a half. It's a recipe for stalemate, based on a misunderstanding about how judicial review functions. Judges have been reviewing American laws for more than 200 years. Legislatures have not gone back to alter every law that judges have invalidated as unconstitutional.
The people who say the court should have asked the Iowa legislature to correct the Defense of Marriage Act know that the votes weren't there in the Iowa House and Senate to pass a bill supporting same-sex marriage rights, and probably not civil unions either. In any case, the Varnum v Brien ruling made clear that allowing civil unions for same-sex couples would not be consistent with equal rights protections in the Iowa Constitution. So no "correction" would have been forthcoming. Same-sex couples would continue to be denied civil marriage rights in Iowa.
Changing the system
The political battle over the future of the Iowa Supreme Court won't end after Branstad appoints new justices. He will seek changes to the judicial nominating commission:
The governor appoints half the members of the commission, subject to Senate approval. Iowa lawyers elect the others. The senior Iowa Supreme Court justice other than the chief justice presides over the commission.
Branstad noted that Iowa's method of picking justices was established in 1962 by a constitutional amendment that calls for officials to disregard political affiliation when choosing commission members. In reality, that political neutrality hasn't happened, he said.
"Right now, it is done with regard to politics because you have 12 Democrats and only one Republican, and that didn't just happen by accident," Branstad said. "So I think that needs to be corrected."
Gronstal said he remembers Democrats expressing concern that the nominating process under Branstad's earlier tenure as governor was biased in favor of Republicans.
In 1998, at least five of the seven appointed members of the nominating commission were Republicans, records show.
Branstad repeatedly criticized the judicial nominating system during the gubernatorial campaign. At first he favored the federal model, whereby the governor could appoint judges subject to confirmation by the Iowa Senate. He later settled on a call for partisan balance on the judicial nominating commissions. His close associate and onetime chief of staff Doug Gross has described merit selection of judges as "critically important to our civility in our society," needing just a few changes to reduce the influence of Democrats and the State Bar Association.
A 1962 Iowa constitutional amendment set up the current judicial nominating system, but Iowa legislative staff have told me that only an ordinary law (not a constitutional amendment) would be needed to require partisan balance on the judicial nominating commissions. That kind of bill sounds like a reasonable check against one party controlling the governorship for a long time. Most state boards already have partisan balance, and I doubt the Democratic-controlled Iowa Senate would go to the mat to prevent applying similar rules to the judicial commissions.
Branstad's problem may be in the Iowa House, where a significant faction in the 60-member Republican caucus wants more sweeping changes to our judicial system. Incoming Iowa House Speaker Kraig Paulsen says Republicans will consider possible changes to the system. A significant GOP faction opposes the whole concept of merit selection for judges. Last year three House Republicans introduced a constitutional amendment that would bring back elections for the Iowa Supreme Court. That effort is sure to be revived in the 2011 session, and it will have support from conservative opinion leaders outside the legislature, such as talk radio hosts and The Iowa Republican blog. The retention elections presumably gave Republicans confidence that Iowa voters would elect more conservative judges than the current members of the high court.
During the 2010 legislative session, State Representative Rod Roberts introduced a separate constitutional amendment that would maintain judicial appointments but require more geographical balance on the Supreme Court. Roberts retired from the Iowa House, but someone else could pick up his proposal and run with it next year.
State Representative Jason Schultz introduced a bill during the 2010 session to regulate judges' conduct more broadly. Schultz's proposal would have prohibited Iowa judges from citing precedent or case law in their rulings. I am not exaggerating. I doubt someone like Schultz would be satisfied with a little tinkering to require partisan balance on the judicial nominating commission. He is a rising star in the House Republican caucus, named to chair an appropriations subcommittee in just his second term.
When Republicans were in the House minority, GOP leaders routinely forced Democrats to show they had 51 votes for a bill before releasing members of the minority to vote for it too. I don't know whether the new House Minority Leader Kevin McCarthy will adopt a similar stance. If he does, it will be up to Speaker Paulsen to find 51 votes in favor of Branstad's desired changes to the judicial nominating commissions. That could happen, but I wouldn't rule out a revolt on the right wing. Some of the 22 brand-new Republican state representatives have vowed not to compromise their conservative principles.
Last week Indiana attorney Jim Bopp filed a federal lawsuit on behalf of four Iowans who claim the judicial nominating system in place since 1962 violates their equal protection rights:
"Plaintiffs, because they are not attorneys, are excluded from the elections of the Elective members and have no say whatsoever in their selection," the lawsuit alleges.
Iowa's merit-selection process for choosing appellate judges and justices relies on a 15-member commission who seek, screen and select finalists for the bench. The finalists then go to the governor, who picks one nominee for each seat without legislative confirmation. [...]
Seven commission members are lawyers elected by lawyers who are admitted to the state bar. Seven are non-lawyer appointees, chosen by the governor with legislative confirmation. The chairman is the most senior Iowa Supreme Court justice other than the chief.
Similar federal lawsuits in Kansas and Alaska were filed but thrown out earlier this year by federal courts.
In the Alaska case, the U.S. Court of Appeals Ninth Circult ruled that the commission role assigned to lawyers was "rationally related to the state's interest in selecting a qualified judiciary composed of lawyers."
"Plaintiffs are hard-pressed to find legal support for the principle they seek to establish," the court wrote.
I can't see this lawsuit going anywhere. No one has excluded the plaintiffs from participating on the judicial nominating commission. They could be appointed by the governor, just like any other citizen of Iowa. Like Todd Dorman, I find it ironic that "court-opponents, who railed against the Iowa SUPCO for supposedly overturning the 'will of the people' by legalizing gay marriage, are now asking the federal court to overturn the will of the people who adopted the constitutional amendment in 1962." I also find it ironic that Bopp is using an equal-protection argument against the judicial selection system, since equal protection doctrine was at the heart of the Varnum v Brien decision.
Bopp is a member of the Republican National Committee and has served as counsel to various groups on the religious right. These well-funded groups have an interest in replacing merit-based judicial selection with judicial elections, because they could flood the airwaves with advertising promoting their preferred judges.
It may be months before a federal court issues any ruling on Bopp's lawsuit, but the case will embolden conservatives who want big changes to judicial selection. Supporters of merit selection need to be ready to make the case for keeping our current system. More Supreme Court Justice David Wiggins spoke to that recently:
Wiggins was a trial lawyer for 27 years before his appointment to the Iowa Supreme Court in 2003, and he spent a couple of minutes tonight comparing Iowa judges - who are appointed by the governor - to judges in other states who are elected by voters.
"I can tell you by personal experience - and I could talk for hours about some of the stories - but when appearing in other jurisdictions in other states, I do see the difference in the quality of judges. I do see the difference on how you approach a judge because of campaign finance and other things," Wiggins said. "Those are considerations you have to take into account when you're in a state where judges are elected."
Other political pressure on judges
Since the election, several Republicans have urged the remaining four Supreme Court justices to resign. Bob Vander Plaats, who headed the anti-retention campaign, has argued the case:
"But I do believe those four justices do need to think about the message that was sent on November 2, and I believe that they fully realize that if they would have been on that ballot along with their three other peers that they would have been voted off too," Vander Plaats says, "so as the appointment process takes place, I believe they need to take a look at a timeline and see if that's something that they would choose to do, is to step down to make sure that they honor the court and they don't disrupt the court proceedings by not having a quorum."
Vander Plaats says it does not matter that the remaining justices were not on the ballot. Very few Iowans know the justice's names or know them personally, he says - even the justices who were voted off. But Vander Plaats says he believes voters held the whole court accountable for the opinion on gay marriage because the court was "activist in nature."
"They stepped out of their judicial boundaries and tried to make law, govern law and amend the constitution from the bench," he says. [...]
"The former high school principal in me says, if seven kids are guilty of the same violation of the student handbook, but only three were there at the scene when you found them, you still try to hold the other four accountable," Vander Plaats says.
No one on the court will take Vander Plaats' argument seriously. Retention elections are staggered to avoid too many vacancies on the court. The system's not designed to allow the public to throw out a whole cohort at one time.
Meanwhile, Speaker Paulsen is open to the idea of impeaching the four remaining Supreme Court justices who concurred in Varnum v Brien, if the public demands it. He interprets the judicial retention vote as a sign that Iowans want lawmakers to "ensure we're not rolling over any time the courts want to boss us around." Newly-elected State Senator Kent Sorenson, a hero to conservatives, has a seat on the Iowa Senate Judiciary Committee and will push for impeaching the justices, as part of his broader plan to "do battle" and "burn this place down."
Impeachment proceedings would have to originate in the Iowa House, and I can easily see 51 of the 60 Republicans voting to impeach the justices. I can't imagine any scenario in which 34 senators (two-thirds of the 50-member Iowa Senate) would convict the justices. An impeachment spectacle would stir up more right-wing resentment against the judges and perhaps resistance to merely tweaking with the judicial nominating system.
UPDATE: Senate Majority Leader Mike Gronstal released this statement on December 16 in response to Paulsen's comments:
"If the Republican Speaker of the House has discovered "misdemeanor or malfeasance" on the part of Supreme Court Justices, then let's bring the evidence forth. And if the Iowa House approves articles of impeachment, the Senate is ready to receive charges.
"In the meantime, however, I and every other Senate Democrat will stay focused on creating jobs and improving Iowa's economy. And I'm asking Iowans help us convince Republicans that jobs, jobs, jobs should be the Legislature's top priority."
The Justice, Not Politics coalition, which opposed the campaign against retaining Supreme court judges, also responded to Paulsen:
"It is simply reckless for someone in Rep. Paulsen's position to suggest the justices committed a 'misdemeanor or malfeasance in office' because he disagrees with one of the hundreds of decisions the court has made in recent years," the group said. "Iowans expect their court system to be independent from the unpredictable winds of politics, not to fear political retribution over one ruling through extreme procedures like impeachment."
UPDATE: Iowa Independent reported on December 17 that three newly-elected state representatives are already drafting legislation to start impeachment proceedings. They are Tom Shaw (House district 8), Kim Pearson (district 42) and Glen Massie (district 74).
Looking ahead to 2012
The judicial retention elections will reverberate in the 2012 Iowa caucus campaign. Vander Plaats now heads the Iowa Family Policy Center's revamped organization, called The Family Leader. If Mike Huckabee runs for president again, that organization will almost certainly endorse him. Vander Plaats chaired Huckabee's Iowa campaign before the 2008 caucuses, and Huckabee was the keynote speaker for The Family Leader's big fall fundraiser. Naturally, Huckabee says all the "right" things about the retention vote.
Several other possible Republican presidential candidates have praised Iowans for tossing out the judges. Newt Gingrich has echoed Vander Plaats' call for the four remaining Supreme Court justices to resign.
If Indiana Governor Mitch Daniels runs for president, he will have to explain his veto of a bill to replace a merit selection system in his own state. That could be a deal-breaker for many Iowa Republicans.
Wiggins is the only current Iowa Supreme Court justice who comes up for retention in the 2012 general election. The other three justices who concurred in Varnum v Brien won't be on the ballot until 2016. I expect the same groups that opposed retaining Ternus, Streit and Baker will go after Wiggins, but their message will be more complicated than it was this year. Instead of "turn the ballot over and vote no, no, no, no," advertising might tell voters "no on Wiggins, yes on X, Y and Z" (the new Branstad appointees to the Supreme Court). Then again, if social conservatives decide to target the whole merit selection system, they may tell voters to reject all the Supreme Court justices in 2012, with a view to challenging the legitimacy of Iowa's current selection system.
The campaign for retaining the Supreme Court justices got a late start and was outspent by opponents. Moreover, the pro-retention message focused on the integrity of Iowa's judicial system rather than defending the records of Ternus, Streit and Baker. Some advocates are determined not to make the same mistake in 2012:
"We cannot take for granted that Iowans know and appreciate and understand the courts," said Troy Price, political director for One Iowa, the state's largest gay-rights group, who advocated a mix of education and better-financed campaigning heading into future elections. He said judicial advocates could not "overcome the hundreds of thousands of dollars in shadowy out-of-state money" that flowed into Iowa to defeat the justices who stood for retention.
"We have to be ready to implement real candidate campaigns to defend judges who may be targeted by an anti-retention effort," Price said. "From the district court level to the Supreme Court level, we have to be able to hit back and hit back with targeted arguments to counter the misinformation campaigns that we saw this year. We have to stand ready, we have to take all threats seriously and we have to defend the members of the courts who have taken courageous positions in their current roles."
Governor-elect Branstad took no stand on the retention elections this year, and I don't expect him to urge voters to support or oppose retention in 2012. He has asserted that Democrats have the power to defuse the issue:
Another way to restore public support for the judicial system is for the Legislature to allow a vote of the people on amending the constitution to restore one-man, one-woman marriage, Branstad said.
That last point has been echoed by other Republicans, like Iowa Senate Minority Leader Paul McKinley:
McKinley said voter frustration over majority Democrats' refusal to allow the Legislature to consider a resolution on a constitutional amendment defining marriage as only between one man and one woman resulted in the focus shifting to three justices up for retention who were part of a unanimous 2009 decision that ruled a state Defense of Marriage law unconstitutional --- paving the way for civil marriages for couples of the same gender. [...]
"I believe the judges would still be in office had (Senate Majority Leader) Mike Gronstal pulled out that vote over the past two years. It would not even have been an issue," McKinley said. "You can lay that squarely at the feet of the Democrats, and I don't know if they want to be responsible for a redo of this in two years on the retention vote or not.
That's some revisionist history. Within days of the Varnum v Brien decision, social conservatives vowed to target the Supreme Court justices on the ballot:
Chuck Hurley, also a former legislator and president of the [Iowa Family 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. [...]
"Three judges on the ballot. We will remember next November," Hurley said. "You are not fooling anyone."
Even if the Iowa House and Senate had approved a constitutional amendment to ban same-sex marriage this year, groups on the religious right would have gone after the Supreme Court justices. The 2010 campaign would have been a perfect trial run for a statewide effort to pass the marriage amendment in 2012, when the amendment could have appeared on the ballot.
This week three Iowa attorneys filed suit in Polk County seeking to prevent Ternus, Streit and Baker from leaving office at the end of this year. They cite language from Article V, Section 17 of the Iowa Constitution, which says judges "shall at such judicial election stand for retention in office on a separate ballot which shall submit to the question of whether such judge shall be retained in office for the tenure prescribed for such office and when such tenure is a term of years, on their request, they shall, at the judicial election next before the end of each term, stand again for retention on such ballot."
Talk about a day late and a dollar short. Iowans have been voting on judges on the same ballot as other offices for decades. If the attorneys wanted to challenge that system, they should have at least filed their lawsuit before the election. Announcing the suit six weeks after Ternus, Streit and Baker lost greatly undermines their case:
"There's no allegation of confusion regarding the ballot, as best I can tell," said Drake's Mark Kende, who has read the lawsuit. "There's no allegation that they didn't know who they were voting for." [...]
Kende said the lawyers who filed the most recent lawsuit may have a workable argument about the ballot. But he said an order to void the election is an "extraordinary remedy" that probably will not happen.
The lawyers must also show a judge that they acted in a timely manner, Kende said.
"It's not to say they did anything wrong," Kende said. "But there is this question: If there is this problem with the ballot, the problem was there way before the election took place."
Kende and others interviewed Wednesday said the arguments made in the lawsuit most likely will not persuade a judge to void the election results.
That lawsuit will probably die quickly. I doubt separate ballots will have to be produced for judicial voting in 2012.
Share any thoughts about the Iowa Supreme Court, judicial nominations or retention elections in this thread.
Final note: Chief Justice Ternus received an award from Youth and Shelter Services last week for "outstanding contribution to the well-being of children and youth" in Iowa. First Lady Mari Culver presented the award:
"Her statewide policy of one judge/one child has had a major positive impact on the welfare of children and youth," Culver said, noting a series of different judges used to handle a child's case as it moved from one jurisdiction to another.
"As a spokesperson, Justice Ternus has recruited hundreds of ... volunteers to serve as advocates for children," Culver said.
A 16-year-old girl who has been in and out of foster care spoke at the ceremony honoring Ternus: "If you change judges, the judge will not know what is going on ... Thanks to Justice Ternus, I have the same judge as I had when I was five years old."
Accepting the award, Ternus talked about her work for vulnerable children:
"There is no more important contribution that any of us can make to the society than to help children and families in need," Ternus said. "...When I joined the court in 1993, I had no idea my work...would include advocacy for children...I had not only an opportunity but an obligation as a member of the Iowa Supreme Court to foster the contributions that the court system could make in working with agencies...to do everything we could for the vulnerable children of our state. When we ensure that our children have a good upbringing, we give them the tools they need to become responsible, productive and happy adults...They're just kids and they've had a bad break, but they all have wonderful potential if we care enough."
"...I am truly thankful for the opportunities that I have had as a member of the court to advocate on behalf of children and families. It's the most important work that I have ever done," Ternus said, her voice breaking with emotion.
She'll be missed. Too bad the "family values" crowd who campaigned against the judges didn't consider the totality of Ternus' record.