It's time for another thread to discuss this year's judicial retention elections. Recent links on the campaign are after the jump, along with the first television commercial urging Iowans to vote against retaining Iowa Supreme Court Justice David Wiggins.
UPDATE: Progress Iowa cut a pro-retention video featuring "Iowa Nice Guy" Scott Siepker. I've added it at the end of this post.
With funding from the National Organization of Marriage, the conservative group Iowans for Freedom launched this television commercial on October 3. Julie Summa, communications director for the FAMiLY Leader and Iowans for Freedom, told me today that this commercial ran on broadcast and cable television in the Des Moines, Cedar Rapids, and Sioux City markets.
Male voice-over: Iowa voters made history last election, [footage from Iowa Supreme Court chamber, www.NoWiggins.com near bottom of screen]
holding activist Supreme Court judges accountable for ignoring our will and imposing gay marriage. [Closer view of Justice Wiggins during Supreme Court hearing; a label with his name is in front of his chair, and www.NoWiggins.com is still visible near bottom of screen]
Now we must hold David Wiggins accountable for redefining marriage and legislating from the bench. [next to photo of Wiggins, labeled David S. Wiggins, Iowa Supreme Court Judge, words CONSTITUTIONAL ACCOUNTABILITY and NoWiggins.com logo are on screen]
Only 63 percent of his peers support his retention. [photo of Wiggins, labeled David S. Wiggins, Iowa Supreme Court Judge, above words RETENTION: 63% Iowa Bar Association Judicial Review Results]
In school, that's a D minus. [giant red D- imposed on screen]
If David Wiggins can impose his liberal values and redefine marriage, many of our Iowa traditions and rights are at risk. [words on screen IMPOSE HIS LIBERAL VALUES REDEFINE MARRIAGE; photo of Wiggins on left, on right footage of a church, then a girl sitting with her mother (apparently homeschooling), then a couple with a young child, then a boy standing in front of the American flag with his hand over his heart (apparently saying the Pledge of Allegiance), then man with hunting dog]
Hold David Wiggins accountable. Vote no on Wiggins. [photo of Wiggins on left; on right, image of back side of Iowa ballot. Shall the justices for the Supreme Court be Retained? Red X in box next to "NO" for Wiggins; ballot left blank for Edward Mansfield, Thomas Waterman, and Bruce Zager]
Summa of Iowans for Freedom confirmed that the ad buy was for last week only, meaning that the commercial is no longer in rotation. The FAMiLY Leader is trying to keep the message in play, though. Excerpt from an October 8 press release:
Iowa Supreme Court Judge David Wiggins has earned the distinction of being the worst-rated Supreme Court judge up for retention in 50 years.
Since the Iowa State Bar Association helped put the retention process in place in 1962, Wiggins ranks as the lowest judge ever to be up for a retention election. More than 500 Iowa attorneys gave Wiggins a 63 percent retention score, according to the Iowa State Bar Association's 2012 judicial review.
The second-lowest ranking by Iowa attorneys in the state bar association's judicial review was then Chief Justice Marsha Ternus with a 72 percent in 2010. Ternus was one of the three Supreme Court judges not retained in 2010 by over a half million Iowa voters.
"The Iowa State Bar Association has stressed the importance of having the best court system in the nation, yet it is encouraging Iowa voters to settle for mediocrity by retaining the worst Supreme Court judge in the past 50 years," said Tamara Scott, Iowans for Freedom state co-chair. "The fact is, this D minus rating wasn't a poll conducted by Iowans for Freedom. It is attorneys from the Iowa State Bar Association - in other words, the closest thing possible to a jury of his peers - who in their review, gave Wiggins the worst retention score in the history of the process."
This is Wiggins' second retention election. In 2004, one year after being appointed to the Iowa Supreme Court, Wiggins' peers gave him an 82 percent retention rating.
Bob Vander Plaats, State Chair, Iowans for Freedom, said, "Here's the point: they've been doing these ratings for half a century, and Judge Wiggins' total for 2012 is the worst ever recorded." He added, "To make matters worse, his trend line since 2004 is one of steep decline. In other words, unless we remove him, the only judge worse than Wiggins in 2012 is probably going to be Wiggins in 2020. That is why Iowans for Freedom is encouraging a No vote on Wiggins on November 6."
I can see why they're using that "D minus" talking point--it sounds pretty persuasive. However, it misrepresents the attorneys' ratings of the Iowa Supreme Court justices up for retention. You can find the details on page 6 of the Iowa Bar Association's complete 2012 Judicial Performance Review (pdf). While his overall retention score was lower than that of the new Supreme Court justices appointed in 2011, Wiggins averages in the "satisfactory" to "good" range in all ten categories, never "deficient" or "very poor."
Even Wiggins' lowest scores (related to temperament, demeanor, courtesy, and patience) still averaged above the "satisfactory" level. In terms of "knowledge and application of the law," "perception of factual issues," "attentiveness to arguments and testimony," and "treats people equally," Wiggins' average rating was much closer to "good" than to satisfactory.
James Q. Lynch caught another error in the FAMiLY Leader analysis: "Actually, a Polk County district Court judge received a retention rating of 61 percent from the bar this year."
That would be District Associate Judge Rachael Seymour, appointed in 2010; see pages 43 and 47 of the Iowa Bar Association's complete 2012 Judicial Performance Review (pdf).
Vander Plaats and Iowa Bar Association President Cynthia Moser were the guests on Iowa Public Television's "Iowa Press" program on September 28. Click here for the full transcript or to watch the video. Excerpt:
Vander Plaats: [...] But we do believe once we educate Iowans on Wiggins, what he has done, not only the poor scoring that he had according to their scoring instrument -- the educator in me says that is a D- and we have told that to people all across this state but then reminding them that he legislated from the bench, he executed from the bench, he tried to amend the Constitution from the bench and if he'll do this to the institution of marriage it's a private property issue, it's a 2nd Amendment issue, it's a religious liberty issue, it's a freedom issue and we won last time, James, not just with republicans but with the independents and democrats alike. And on this bus tour I had several people come up to me and say I disagree with you on the stance on marriage but I'm still going to vote no on Wiggins because I don't believe they can do what they did for us to get to same-sex marriage.
Moser: May I respond to that?
Lynch: Yes, please.
Moser: It's hard to know where to start because there are so many misrepresentations and mischaracterizations of what has happened and what our court did. First of all, let me speak to the bar association's judicial retention survey, which is released to the public to educate the public about the things that we think are important for them to know as they make an informed and intelligent decision whether to vote to retain judges. There are, again, depending on the level at which a judge sits eight or ten questions. They go to judicial temperament, integrity, the quality of the decisions and the work product that the judge produces and his or her commitment to public service. In this instance, in every category that Justice Wiggins was rated he was rated in a high satisfactory range. WE believe that is a strong basis to support retention for him. Mr. Vander Plaats has referred to this D- grade. It is important for you to understand that this isn't a classroom exercise. The question whether a judge or justice should be retained is more in the nature of a poll. A 63% vote is a strong vote in support of retention. It is certainly much higher than the 51% that would be necessary under Iowa's retention election requirements to retain that person. It is not a letter grade that is assigned in a classroom setting. And in this instance it is more in the nature of a poll or a referendum. Any politician I think would be delighted with a 63% --
Vander Plaats: Maybe a politician would be delighted but let me remind voters, let's be accurate because I've been accused of having mischaracterizations here -- the three justices we voted out last time, Marcia Ternus was at a 72 and Baker and Straight were in the 80s. The three that we replaced them with are now all in the 90s. Wiggins is at a 63% and I have been trained to read scoring instruments and this is yours. It's like me taking a poll on my family. 100% of my family voted for me when I ran for governor. This is like 63%. I've got Bar Association attorneys saying they have never seen a judge rated this low --
Borg: I'm going to let Ms. Moser respond to that because she wanted to and then we'll go on.
Moser: Again, let me stress that this is not a classroom exercise, this is a poll or a referendum and there was a strong majority supporting the retention of Justice Wiggins on the bench. So I think it is a mischaracterization and it is inaccurate to state --
Vander Plaats: Then you need to get it out to the rest of your bars -- out to the rest of your bar association people because they have been calling and saying what a low grade, what a low score and as a matter of fact they're quite insulted that the bar association is traveling the state saying to retain somebody with this low of a score.
Moser: The fact of the matter is a strong majority of our members support what we're doing. Our board of governors voted unanimously to support the action plan. They are the elected representatives of our members. Certainly we have some members who take issue with our position just as you have members of your republican party who take issue with your position. That is to be expected in the democratic society. The fact remains, however, that Justice Wiggins, when you look at the judicial retention survey, scored in the high satisfactory range in every question that was asked and deserves to be retained. And let me add, the rating wouldn't make a difference to you. It didn't make a difference to you in 2010 when Justice Straight [sic], Ternus and Baker were on and they rated in the 70s and the 80s.
Moser is right, Vander Plaats and his allies showed no concern for the Iowa Bar Association's much more favorable ratings of Justices Marsha Ternus, David Baker, and Michael Streit in 2010.
Speaking of Vander Plaats, Bill Tubbs of the North Scott Free Press wrote an entertaining account of a conversation he witnessed during the "No Wiggins" bus tour's stop in Davenport. Former Iowa Supreme Court Justice Linda Neuman and retired District Court Judge Charles Pelton of Clinton attended the event and challenged Vander Plaats after the speeches.
Vander Plaats asserted that the judges who ruled in Varnum v. Brien, the 2009 case that legalized marriage equality in Iowa, had to be removed because they were "making law" and "rewriting the constitution."
Justice Neuman immediately replied. Calmly but firmly she said none of that was true, that the court applied the equal protection clause and did NOT make law or rewrite the constitution. She cited the specific section of the constitution that the court upheld. What ensued was an exchange in which Pelton and Neumann matter-of-factly made their points about keeping Iowa's courts free from politics. [...]
The next day [Vander Plaats] posted a YouTube in Q&A format with his interpretation of the exchange. He describes Neuman's and Pelton's speaking up as "an emotional tirade." He said there was "no intellectual debate" and "she (Neuman) didn't want to talk about the facts." He said the judges had "no justifiable defense" and that for them, it's all about "holding onto power and upholding the courts, even when they're wrong."
Oh. My. Gosh. I can't ever recall a description of something that was so stunningly and breathtakingly different from what I personally witnessed. What I saw were judges who were composed and factual; Vander Plaats was the one who was aggressive and emotional.
The judges reminded Vander Plaats of rulings of the court involving Iowa's Amish population that upheld religious freedom. And even though they said some things to Vander Plaats that do not fit with his prejudice - that his group is being "vindictive" by "disciplining" judges for a decision he didn't like - they were courteous and exercised the restraint that you'd expect from judges. Maybe he thought it was an emotional tirade because he didn't like some of the things they said.
I wanted to say of these things in a reply to the Family Leader YouTube, but the comment and ratings features were disabled. I suppose I'd turn off the "reply" features, too, if my mind was made up and I didn't want to be confused by the facts or hear a dissenting viewpoint.
Incidentally, Neuman was the first woman to serve on the Iowa Supreme Court. The only other woman ever to serve on the court was Chief Justice Marsha Ternus, one of the judges not retained in 2010. Governor Terry Branstad appointed both Neuman and Ternus.
Last week I mentioned that former Iowa House Speaker Chris Rants, a Republican who opposes same-sex marriage rights, spoke out in favor of retaining Wiggins in an editorial for the Sioux City Journal. Rants' piece attracted a lot of attention. The Des Moines Register republished it last week, and Radio Iowa's O.Kay Henderson quoted Rants in this feature yesterday:
Christopher Rants says some of those who're now campaigning to oust an Iowa Supreme Court justice who joined that 2009 ruling are the same people who came to him eight years ago, when Rants was speaker of the Iowa House, warning Iowa's Supreme Court was likely to overturn the state's Defense of Marriage Act.
"You don't just start tossing out the judges because you don't like their rulings," Rants says, "particularly when a lot of people knew that this was going to happen down the road anyway."
Rants says he was convinced by a representative of The Iowa Family Policy Center - now known as The Family Leader - that the House should start the process of getting an amendment to the state's constitution to protect one-man-and-one-woman marriage. The Family Leader is now a key group involved in the campaign to vote Iowa Supreme Court Justice David Wiggins off the bench. Rants suggests it's misplaced energy.
"If people are upset, and I understand why people are upset, and you want to overturn it, you hold the legislature accountable," Rants says. [...]
"I understand that this is an easy rallying cry for those people who are upset with the ruling or who want to continue to have the political issue to fight on," Rants says. "Let's face it - they raised a lot of money two years ago to finance their operation. They've got a lot of outside money coming in again and there's nothing wrong with that, but my larger concern is that we politicize the courts to the point that we don't have an independent judiciary."
I called Rants this morning to ask him why he didn't speak out in favor of retaining the three Iowa Supreme Court justices up for retention two years ago. To my surprise, he told me that he did, but the column for the Sioux City Journal didn't attract as much attention--partly because it came out late in the campaign, partly because only half the column was about the retention vote. Here's the relevant portion of Rants' October 31, 2010 column entitled "Don't forget the back of the ballot."
Before April 3, 2009, most Iowans had never heard of Michael Streit, Marsha Ternus, or David Baker. Be honest, do you recognize those names?
Since the Supreme Court's ruling in Varnum overturning Iowa's statute defining marriage, Iowans concerned about traditional marriage have placed the blame squarely on those judges.
While I too was disappointed in the ruling, I don't share the desire to toss out the judges for the following reason - the blame really lies with three other people also on the ballot: Gov Chet Culver, Speaker Pat Murphy and Senator Mike Gronstal.
Remember, these three are responsible for adoption of the "civil rights," more commonly known as "gay rights," legislation that forced the court into this position. Republicans in the Legislature saw a court case as inevitable, and believing the law was not strong enough, pursued a constitutional amendment - which these three opposed. Lastly, once the court handed the issue back to the Legislature, it was these three who blocked efforts to respond to it.
Toss out Streit, Ternus, or Baker on Tuesday, and what is different Wednesday? Nothing. Toss out Culver, Murphy and Gronstal, and restoring traditional marriage is possible.
I do not want future courts to test the political winds before making decisions - especially when I am often on the non-PC side of things. I also do not want judges campaigning for office.
There are reasons to toss out judges, and that is why the option to retain or not is needed. But in this case, I say toss the Democrats, not the judges.
It's not exactly a ringing endorsement of retaining Ternus, Streit, and Baker, but Rants is correct, he did say people advocating for their removal were misguided. I wish he had been more outspoken about this in September and October 2010.
Any relevant comments are welcome in this thread.
UPDATE: I love the "Justice Nice" video from Progress Iowa, featuring Scott Siepker, who starred in the viral "Iowa Nice" video (and later in "Hawkeye Nice" and "Cyclone Nice"). It's not every day that a political YouTube is uploaded with this notice: "Fair warning, contains adult language (NSFW)."
I love politicians. I love it when they can't solve the simplest problems. I love it when they tweet pictures of their man parts. And I especially love it when they come into Iowa and tell us to kick out our Supreme Court justices, just so they can make a name for themselves.
No really, it's awesome.
They're trying to tell us that allowing same-sex marriage was a political decision. That tells you they know as much about the Iowa Constitution as I know about Star Trek.
Here's the thing about our constitution: it kicks ass.