Last week, a group of conservative Iowa House Republicans finally made good on their promise to introduce articles of impeachment against the four remaining Iowa Supreme Court justices who concurred in the 2009 Varnum v Brien decision on marriage. The impeachment bills won't make it out of committee, let alone the Iowa House, but there may be some political fallout from the effort.
After the jump I examine the articles of impeachment, future prospects for their backers and recent news related to the 2012 judicial retention elections.
Five legislators filed the articles of impeachment. Three are serving their first terms in the House: Kim Pearson (district 42), Tom Shaw (district 8) and Glen Massie (district 74). In December they became the first elected officials to call for impeaching the Supreme Court justices who weren't rejected in the November retention elections. Two experienced House Republicans joined in filing the articles of impeachment: Betty De Boef (district 76) and Dwayne Alons (district 4). To some extent they are outsiders in their own caucus, among very few veteran legislators passed over for committee chairmanships when Republicans took back the Iowa House majority.
When the subject of impeachment first came up, prominent Iowa Republicans were slow to dismiss the idea. House Speaker Kraig Paulsen said he was "open" to impeachment if "the people" demanded it, and House Majority Leader 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."
House Minority Leader Kevin McCarthy was itching for a fight on this issue, judging from a written statement he released last Thursday:
"Either publicly condemn your own Republican members as well as members of the Republican Party for offering this outrageous, extremist proposal or allow a full and open impeachment proceeding for all Iowans to consider knowing House Democrats will use every available procedural tool to shut down the Iowa House and defeat this right-wing effort.
"I suspect, however that the House Republican Leadership will do neither and instead remain cowardly silent. If that is true, then let it be clear to all Republicans where the House Republican leadership truly stands on this issue."
House leaders weren't about to give McCarthy the opening he wanted. Soon after news of the bill filings broke on Thursday, House Judiciary Committee Chairman Rich Anderson told the Des Moines Register,
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, Anderson said.
Anderson said believes the majority of House Republicans agree with him and that it's unlikely that the resolutions will go anywhere.
Anderson is a lawyer who initially applied to fill one of the three seats left open after voters in November ousted three justices. He withdrew his name shortly after applying to continue to focus upon his elected responsibilities.
"Rendering an opinion or resolving a dispute, which is what judges and justices are charged with doing, that is not misconduct or wrongful or unlawful," Anderson said. "As much as the sponsors of the resolution disagree with the opinion, I don't think the legal standard is met."
Friday morning House Speaker Kraig Paulsen swatted down the impeachment effort:
"While I agree with much of the reasoning behind the impeachment resolutions, I disagree with this remedy," the Hiawatha Republican said in a statement. "I do not expect it to be debated on the floor of the House and, if it is, I will vote no. House Republicans remain focused on reducing government spending and lowering taxes for Iowa families and small businesses." [...]
Paulsen said Friday that the resolutions will not come before the full House this year because the late-arriving impeachment papers must first be considered by the House Judiciary Committee, which is not scheduled to convene again this session. Most standing committee work ended on April 1 when the second self-imposed legislative "funnel" deadline arrived.
Why supporters of impeachment waited so long to file these bills remains unclear. The Iowa House and Senate were scheduled to adjourn at the end of April, though budget disagreements will extend this year's session into May. Shaw told Kay Henderson on April 21 that the state representatives wanted to make sure they had the correct legislative language. But if they believe the Varnum ruling was so destructive that its author and concurring justices must be removed from office, why couldn't they get someone to help them with the wording in December or January? We're not talking about highly-developed legal discourse; these bills are only a few paragraphs long.
House Resolution 47 calls for impeaching Justice Brent Appel, House Resolution 48 calls for impeaching Chief Justice Mark Cady, House Resolution 49 calls for impeaching Justice Daryl Hecht, and House Resolution 50 calls for impeaching Justice David Wiggins. Each bill cites the same five reasons, and the language resembles rhetoric we've heard in many Republican speeches denouncing marriage equality:
1. Each justice "improperly assumed the function and role of an elected legislator by ordering that the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute as enacted by the legislative department and approved by the governor of the executive department in 1998."
2. Each justice "knowingly and intentionally usurped the proper function delegated solely and exclusively to the legislative department of declaring public policy, through his judicial declaration of a new public policy contrary to long-standing public policy acknowledged by society and established in Iowa Code section 595.2, subsection 1."
3. Each justice "improperly required the executive department to issue marriage licenses to parties of the same sex in direct contravention of Iowa Code section 595.2."
4. Each justice "created a constitutional crisis regarding the enforcement of the Varnum ruling by allowing different interpretations of the definition of marriage to exist indefinitely within the separate departments of government, leaving the people with no immediate remedy to address this crisis."
5. Each justice "created a constitutional imbalance and confusion within the State of Iowa as to the proper constitutional function of each department, thus undermining the integrity of the tripartite separation of powers among the departments and creating social disorder and unrest."
Points 1, 2 and 3 are laughable. Finding a law inconsistent with the constitution is nothing new for judges in Iowa or elsewhere. Nor is it improper for the executive branch to stop enforcing a law judges have struck down.
Point 4 is mystifying. An unpopular court ruling causes a "constitutional crisis" only in the imaginations of some conservative activists. At the time the Iowa Constitution was adopted, judicial review at the federal level had been well-established for decades. The state constitution lays out a process for amending the document. It says nothing about giving the public an "immediate remedy" for court rulings they dislike. A constitutional amendment to overturn same-sex marriage rights failed to advance in the Iowa House or Senate in 2009 and 2010. This year the amendment passed the Iowa House but stalled in the Iowa Senate. If citizens wanted quicker action on amending the constitution, they could have voted in November 2010 to convene a constitutional assembly this year. A ballot measure to that effect failed by a two to one margin.
Point 5 is my favorite. "Social disorder and unrest"--where and when? This Wednesday marks the second anniversary of the first same-sex marriages performed in Iowa after the Varnum v Brien ruling. The protests around the state on that day went peacefully and caused no major disruptions, even though same-sex marriage had been the top Iowa news story day after day in April 2009. Iowa's most vocal critic of the Varnum v Brien ruling, Bob Vander Plaats, has been touring the state this year to help his FAMiLY Leader organization "capture and build on the momentum created by pro-family victories last November." According to every news account I've read about these events, few people have turned up to hear Vander Plaats.
The articles of impeachment won't advance far enough to affect the named Supreme Court justices, but I've been wondering whether the bills' five sponsors will face any political consequences from Republican leaders who would have rather not raised this subject.
Alons represents the safest Iowa House district for the GOP. District 4 makes up most of Sioux County, where Republicans routinely win more than 80 percent of the vote. It contains nearly three times as many registered Republicans as Democrats and no-party voters combined. I don't see what unhappy party leaders can do to Alons. As I mentioned above, he doesn't hold a committee chairmanship leaders could take away. He isn't the brightest bulb, but he does have the guts to back hopeless causes. For example, he nominated Bob Vander Plaats for lieutenant governor at last summer's state GOP convention. Earlier this session, Alons proposed other legislation backed by only a small minority in his own caucus: he sought to reduce Iowa Supreme Court justices' pay and change the state's judicial selection process.
If De Boef wants to continue her legislative career, she will be more vulnerable than Alons. Redistricting threw De Boef in with a fellow House Republican. She won't run against Jarad Klein in a primary but hasn't said whether she will retire from the legislature or run in a different district. Nearby House district 80 is empty and is one of the most evenly-divided districts created by the new map: 6,593 registered Democrats, 6,496 registered Republicans and 6,577 no-party voters. De Boef isn't a powerhouse fundraiser, so if she wants to win in a competitive district, she will probably need help from the House Republican majority fund. Last fall, Paulsen and Upmeyer invested more heavily in some competitive districts than others; for example, they left the GOP candidate in winnable House district 7 hanging.
Shaw may find his political career cut short. Redistricting threw him and House Transportation Committee Chairman David Tjepkes in the same Republican-leaning House district 10. There are no empty districts nearby. I haven't seen Shaw declare his intentions, but I find it hard to see him winning a primary against a more entrenched incumbent. House leaders are sure to back Tjepkes over Shaw if there is a primary. Shaw caused problems for them earlier in the session, when he, Massie and Pearson refused to back and repeatedly criticized a bill to ban most abortions after the 20th week of pregnancy.
Redistricting gave Pearson more friendly territory than the Democratic-leaning district in which she shocked Geri Huser in 2010. However, the new district 30 is a swing district with 6,629 registered Democrats, 6,523 registered Republicans and 5,756 no-party voters. Pearson isn't reluctant to criticize party leaders; she had some strong words in her speech to a recent tea party rally in Des Moines. Since she didn't get much assistance from the GOP establishment in 2010, she may be confident she can be elected next year without Paulsen's help.
Massie may be in the most precarious position. One of the Supreme Court justices he wants to impeach, Brent Appel, lives in his House district. Redistricting also made the new district 26 a bit more Democratic than Massie's current district, although it's still relatively balanced at 6,927 registered Democrats, 6,417 registered Republicans and 6,755 no-party voters. Massie's Democratic opponent in 2010, Scott Ourth, is considering another run for the House in 2012. Craig Robinson reported recently at The Iowa Republican blog, "Without help from the Kent Sorenson and others on the ticket, Massie is going to struggle. TIR has also heard that Massie is telling people that he may not seek re-election." If Massie is already fed up with serving in the House, why not file a hopeless impeachment motion a week before the scheduled end of the session?
Perhaps the impeachment bills will be almost forgotten by the time of the 2012 primaries and general election. Even so, at least one Iowa Supreme Court justice will be in a battle to save his career. David Wiggins is up for retention in 2012, along with the three new Supreme Court justices Governor Terry Branstad appointed this year. Branstad commented on the retention vote when taping Iowa Public Television's "Iowa Press" program on April 14:
Branstad: There is one [Supreme Court justice] that comes up next time, and I suspect there will be a lot of people, especially in light of the fact that he chaired the judicial nominating commission and the way he treated some of the applicants to that - and that was all on videotape. I suspect there's going to be some people that have grave concerns about the way he has operated. So I do expect that Wiggins will face some challenge in that. I don't know. It's going to depend -
Henderson: Justice David Wiggins, for viewers who may not know.
Branstad: Yes, Justice David Wiggins. And I think a lot of people were concerned. I've even heard this from some of the judges that were up before him about the lack of temperament in the way he interviewed the candidates and the way they were treated and whether they were all treated in the same even-handed and equitable way. But that's an issue, I guess, that will come up when that comes up. But I guess my feeling is that we need to do all we can to restore respect for the judicial system. I think it's become too partisan, and I think we need to restore balance.
Former Governor Tom Vilsack appointed Wiggins and was asked about Branstad's comments during his own "Iowa Press" appearance on April 21:
Vilsack: Well, I was actually surprised the Governor weighed in on that. I think it's very important that we keep separate the executive branch and the judicial branch. I know Justice Wiggins, he is a very, very sharp legal mind. I think what he did during the course of interviews was to probe, which I think you need to do. Certainly when I questioned potential candidates for office and for judgeships when I was governor we had probing questions that you needed to ask to get a sense of the candidates. And I think the reality is that Justice Wiggins isn't the only justice on the ballot and I'm not sure that folks are actually going to be able to distinguish between those that were appointed by the Vilsack or Culver administration or those that were appointed by the Branstad administration. And I think it's better for the state if we separate the two branches.
[Kay] Henderson: For the benefit of viewers, the three justices who were just sworn in to serve who were appointed by Governor Branstad will be on the ballot in 2012.
Vilsack: That's correct and so it's conceivable that it's not just Justice Wiggins that faces an issue, it's all of those justices. And I think, again, I think we need to get back to a place where the judiciary and the executive branch are separate.
There's no question Wiggins will face a tough election next year, and not just because of the alleged "judicial activism" that was central to last year's campaign against retaining Supreme Court Justices Marsha Ternus, Michael Streit and David Baker. Branstad is correct that Wiggins will deal with additional scrutiny for his role in selecting finalists for the three vacancies on the high court. I think the State Judicial Nominating Commission did mishandle the process by sending the governor a list of nine finalists with only one woman, who happened to be the only female applicant Branstad never would have considered appointing.
Cityview's Civic Skinny raised a good point about Branstad's criticism, though:
Instead of sidestepping a question about the retention vote - governors historically stay away from the business and personalities of the court - the Governor on Iowa Public Television's "Iowa Press" unleashed a broadside on Wiggins, accusing him of being intemperate in running the commission. Actually, he can deny he said that. He said, "I suspect there's going to be some people that have grave concerns," and "I think a lot of people" and "some of the judges who were being considered" say Wiggins showed "a lack of temperament in the way he interviewed the candidates and the way they were treated and whether they were all treated in the same even-handed and equitable way." It's "all on videotape," the Governor noted.
Indeed, it's all on videotape because Wiggins and his committee voted to hold public hearings on nominees - for the first time. The governor then interviewed the nine finalists in private despite some calls for him, too, to conduct the interviews in the open. So, as one guy noted, no one knows the temperament of Branstad himself in his interviews or whether he operated "in an even-handed and equitable way."
The Iowa Press crew let him get away with his attack without pointing that out or following up. ...
While we're on the subject of retention votes, last week Polk County District Judge Michael Huppert dismissed a lawsuit filed last December seeking to invalidate the 2010 votes against Ternus, Streit and Baker. The plaintiffs claimed (unconvincingly) that the Iowa Constitution requires a "separate ballot" for judges up for retention. Huppert dismissed the suit without evaluating that claim:
Huppert did not rule on the merits of the lawsuit, but wrote that "the plaintiffs have not established either a personal or legal interest in this litigation," and could not establish an injury or harm. "The plaintiffs herein have not convinced this court that their position is deserving of judicial resolution," Huppert said.
Even if Huppert had ruled on the merits, the plaintiffs' case was weak. As Bleeding Heartland diarist IowaVoter discussed here, those words have always been understood to require a separate ballot line for each judge, so that voters would not be forced to retain or reject the judges as a group.
Share any relevant thoughts in this thread.
P.S.: This weekend the ACLU Foundation of Iowa is giving the three Supreme Court justices ousted last November the 2011 Louise Noun Award, "presented to those who have made significant contributions to civil liberties in the state."
UPDATE: Ternus will receive an honorary doctorate from Coe College in Cedar Rapids next month, when she delivers the commencement address there.