# Judicial Review

Republicans waging war against judicial independence in Iowa

Bob Vander Plaats announced at a press conference today that he will not run for governor as an independent but will lead a public campaign against retaining the three Iowa Supreme Court justices whose names are on the ballot this November. Vander Plaats didn't say who will fund the campaign, but promised more details on his "grassroots" effort next week. James Lynch reported yesterday that the Republican Governors Association will fund Vander Plaats' crusade, which RGA officials consider "a model to be duplicated in other states."

It's been obvious for weeks that Vander Plaats wasn't planning an independent bid for governor. The only question was what kind of face-saving deal would be struck between the bitter Republican primary rivals. The rumor mill suggested Vander Plaats might endorse Branstad in exchange for a promised future job. Instead, we have a different truce: Vander Plaats formally stands true to his principles by not endorsing Branstad. In return, the RGA (Branstad's largest campaign donor by far) will pay for Vander Plaats' revenge mission against Iowa judges.

Branstad has avoided publicly urging Iowans to vote against retaining the Supreme Court justices, and he didn't have the guts today to take a stand for or against unseating them over a political dispute. In a written statement, Branstad said, "This is an issue on which Bob has often spoke with great passion and I understand his desire to pursue this path."

How different from the Branstad of May 2009, who said "I do respect the existence of the separation of powers" when asked whether he regretted appointing two of the current justices, including Mark Cady, author of the Varnum v Brien decision.

The old Branstad wasn't planning to run for governor again. The new Branstad doesn't mind exploiting resentment over same-sex marriage for his own political gain. If that ends the careers of three good judges while elevating demagogues who don't understand judicial review, so be it. Branstad appointee and Chief Justice Marsha Ternus has said this year's retention elections will test Iowans' commitment to an impartial judiciary. Branstad won't join the right side in this fight.

On the contrary, Branstad has endorsed changing Iowa's highly-regarded merit-based system for selecting judges. He has an interest in creating vacancies he could fill if elected governor, and he would rather pander to the religious right than allow judicial selection commissions to keep doing the job they've been doing for almost four decades. Some Iowa Republicans have advocated bringing back judicial elections or extremely stupid new restrictions on judicial deliberations. Branstad should know better than to play with fire on this issue.

Iowa House and Senate Republicans are probably overjoyed by today's news. Vander Plaats will be working to turn out social conservatives who might not be thrilled with the party's nominee for governor. That has to help GOP candidates in some of the battleground legislative districts. On the other hand, moderates may be turned off by the campaign against the judges. A Des Moines Register poll of likely Iowa Republican primary voters taken in June by Selzer and Associates found that 35 percent of respondents said some Iowans had "overreacted" to the gay marriage issue. The same survey found that 45 percent of likely Republican primary voters were against voting to remove Supreme Court judges because of their decision on marriage.

I'm concerned about the retention elections, because the judges are unable to campaign on their own behalf. Those who support judicial independence, such as the State Bar Association, are unlikely to match spending against the judges by conservative groups and the Republican Governors Association. Fortunately, Governor Chet Culver made his position loud and clear today:

"I support Iowa's Supreme Court justices and more importantly, I support our judicial nomination and appointment process as it stands today.

"Iowa is known for having the fairest judge selection system in the country. We oppose efforts to make choosing our judges more political, more ideological.

"Terry Branstad and his running mate Kim Reynolds have made it clear that they want to change our system. Branstad has gone so far as to highlight Reynolds's support for changing the state's constitution, allowing the governor to reject all nominees sent by the judicial nominating committee, requiring the committee to send names again and again until the governor finds an appointee that supports a certain political agenda.

"This campaign is about the future of our state and about choosing to move forward, instead of backwards. The best way to do that is not to focus on ideological battles but to bring Iowans together by investing in our future to create jobs, continue our national leadership in renewable energy and build 21st Century schools."

John Deeth seems optimistic that the Vander Plaats crusade will fail. He makes a good point today:

Just for the record, here's how the math usually works out on these things: the judges almost always win [retention] by an 80%-20% margin, with 40% or so of voters just skipping the contests entirely. I don't see BVP swaying a typical independent voter. If he has any impact it's on the margins, lowering that undervote percentage.

In [the] 1992 ERA vote, I learned a tough but basic lesson: Loudly reminding your people to vote Yes in an otherwise low-profile race simultaneously reminds the other side to vote No. The polarity is reversed here but BVP faces the same dilemma.

In 2004, activists on the religious right "mounted an unsuccessful campaign to oust Woodbury County District Court Judge Jeffrey Neary in 2004 based on Neary's decision to grant a divorce to two lesbians who had entered into a civil union in Vermont." Here's hoping Vander Plaats fails too.

Share any relevant thoughts in this thread. Do you think Branstad can get by with weasel wording on the retention vote for the rest of the campaign? Or will he be forced later to come out explicitly for or against keeping Justices Ternus, Michael Streit and David Baker on the high court?

UPDATE: A statement from the American Judicature Society is after the jump. Iowa's judiciary has been recognized as among the best in the country.

AUGUST 11 UPDATE: How cowardly is Terry Branstad?

"This is a ballot issue, and Gov. Branstad believes this is an issue on which people need to decide for themselves," spokesman Tim Albrecht said today. "He respects the secret ballot and believes people should vote their conscience."

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Iowa Republicans, make up your minds about "activist judges"

Next week will mark the first anniversary of the Iowa Supreme Court’s ruling in Varnum v Brien. Seven justices unanimously concluded that the section of the Iowa Code enacted through our state’s Defense of Marriage Act violates the equal protection provision of the Iowa Constitution. Since the day that decision was announced, many Iowa Republicans have called for overturning the court’s ruling. Some have denied that county recorders were obliged to implement the ruling, or insisted that government officials may ignore a court’s opinion about the constitutionality of a law. Others have called on Iowans to vote against retaining justices who supposedly overreached their authority. For example, gubernatorial candidate Rod Roberts said last November,

“We need to send a message to the Iowa Supreme Court that they are accountable to the people of Iowa,” said Roberts, who has made restoring the role of the people in state government a centerpiece of his campaign. “The problem with judicial activism is that it thwarts the will of the legislature and of the people of Iowa.”

Now that Congress has approved a health insurance reform bill Republicans don’t like, some GOP politicians have decided judicial activism isn’t so bad after all. Gubernatorial candidate Bob Vander Plaats pledged to “invoke the Constitution’s 10th Amendment to protect Iowans from new federal mandates” on health care. Rod Roberts followed Vander Plaats’ lead:

Roberts said that if the federal government passes a nationalized health care plan that conflicts with the Roberts Amendment, as governor he will file a lawsuit in federal court against President Obama to have the plan struck down as a violation of Iowans’ Tenth Amendment rights. The Tenth Amendment to the U.S. Constitution provides that powers not delegated to the federal government (such as the regulation of health insurance) are reserved for the states.

Gubernatorial candidate Terry Branstad also supported the idea of using the courts to nullify the will of Congress: “Given the massive scope and effect of this [health insurance reform] bill, it is likely that various provisions will be challenged in the courts. Those challenges are both timely and appropriate.”

Any constitutional lawyer can tell you that the U.S. Supreme Court has long affirmed the power of Congress to regulate interstate commerce. Law professor Mark Hall explains in detail here why constitutional arguments against an individual mandate to purchase health insurance are wrong. As for the broader 10th amendment claim that the constitution doesn’t empower the federal government to regulate health insurance, Hall notes, “Congress has ample power and precedent through the Constitution’s ‘Commerce Clause’ to regulate just about any aspect of the national economy.”

Conservative legal scholar Eugene Volokh likewise does not find the constitutional arguments against health insurance reform convincing:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

The U.S. Supreme Court could overrule the will of Congress on health insurance reform only by reversing several decades of precedent about the definition of commerce. That’s textbook “judicial activism,” but it’s ok with some Iowa Republicans if it achieves the political end they are seeking.

By the way, Vander Plaats claims that as governor, he could issue an executive order halting same-sex marriages in Iowa. I wonder if he also thinks President Barack Obama could issue an executive order overturning a possible Supreme Court ruling against health insurance reform.

UPDATE: Kevin Drum considers prospects for a lawsuit challenging the individual mandate to buy health insurance. He makes the same point about Congressional authority to regulate interstate commerce and adds,

What’s more, the penalties for not buying insurance are tax penalties, and if anything, Congress has even wider scope in the tax area than in the commerce area. The Supreme Court has frequently ruled that Congress can pass tax laws that essentially force people to do things that Congress doesn’t have the direct power to require.

[…]here’s the thing: if the Supreme Court decided to overturn decades of precedent and strike down the mandate even though Kevin Drum says they shouldn’t (hard to imagine, I know), the insurance industry will go ballistic. If they’re required to cover all comers, even those with expensive pre-existing conditions, then they have to have a mandate in order to get all the healthy people into the insurance pool too. So they would argue very persuasively that unless Congress figures out a fix, they’ll drive private insurers out of business in short order. And that, in turn, will almost certainly be enough incentive for both Democrats and Republicans to find a way to enforce a mandate by other means. If necessary, there are ways to rewrite the rules so that people aren’t literally required to get insurance, but are incentivized so strongly that nearly everyone will do it. As an example, Congress might pass a law making state Medicaid funding dependent on states passing laws requiring residents to buy insurance. Dependent funding is something Congress does routinely, and states don’t have any constitutional issues when it comes to requiring residents to buy insurance. They all do it with auto insurance and Massachusetts does it with health insurance.

Like Drum, I view these proposed legal challenges as Republican posturing rather than a serious threat to nullify the law Obama signed this morning.

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Who is the most clueless Iowa legislator?

A couple of years ago, I would have said State Representative Dwayne Alons (House district 4). Longtime Bleeding Heartland readers may remember Alons as the guy who asserted during a committee hearing on greenhouse gas emissions that global warming would be good for Iowa because warmer temperatures helped ancient Mayans grow taller and stronger than today’s men and women. The following year, Alons remarked, “We shouldn’t be as concerned, actually, about warming, especially now that we have modern refrigeration and air conditioning.”

Alons sets the bar high in terms of cluelessness, but after reading this piece by Jason Hancock today, I think State Representative Jason Schultz (House district 55) could give him a run for his money. Schultz has introduced House File 2313, which stipulates,

 1  1    Section 1.  NEW SECTION.  602.1100  Judicial authority.

 1  2    1.  A judicial officer shall not use judicial precedent,

 1  3 case law, penumbras, or international law as a basis for

 1  4 rulings.  A judicial officer shall only use the Constitution

 1  5 of the United States, the Constitution of the State of Iowa,

 1  6 and the Code of Iowa as the basis for any ruling issued by such

 1  7 judicial officer.    The only source material that may be used

 1  8 for interpreting the Constitution of the United States by a

 1  9 judicial officer in this state shall be the Federalist papers

 1 10 and other writings of the founding fathers to describe the

 1 11 intent of the founding fathers, and if such source material is

 1 12 used, the full context of the source material must be used by

 1 13 the judicial officer.

 1 14    2.  This section is not reviewable by the court.

 1 15    3.  A violation of this section by a judicial officer shall

 1 16 be considered malfeasance in office and subjects the judicial

 1 17 officer to impeachment under chapter 68.

Bad ideas are not in short supply at the Iowa Capitol, but Schultz has taken things to a new level of stupidity here. No precedent and no case law, really? I have never heard of a so-called “strict constructionist” who would prohibit judges from citing previous court rulings in forming their opinions. In effect, Schultz is saying judges have to reinvent the wheel in almost every case. Yet conservative jurists usually lean toward respecting precedent.

Schultz would not allow any judge to consult historians’ work on the Constitution or the Federalist Papers either, as if there can be no ambiguity about what 18th-century language was meant to convey.

Mr. desmoinesdem reminds me that even U.S. Supreme Court Justice Antonin Scalia, a critic of citing foreign law in U.S. courts, has cited international law before when interpreting a treaty. In a recent case Scalia even cited the Babylonian Talmud, which is more than 1,000 years old.

If you’re wondering why Schultz wants to ban “penumbras,” that term alludes to the idea that there is a right to privacy, even though the Bill of Rights does not contain the word “privacy.”

Schultz’s bill isn’t going anywhere, and Drake University law professor Mark Kende notes that it would be unconstitutional in any event.

Like many Iowa Republicans, Schultz appears not to have a solid grasp of the judicial review concept. His support for a bill that would restore elections for Iowa Supreme Court justices indicates that he’s not sold on judicial independence. But even in the context of bad Republican ideas, House File 2313 stands out. Schultz is angry that the Iowa Supreme Court cited Iowa case law in its Varnum v Brien ruling last year, so the solution must be to ban judges from considering case law.

Not only is Schultz ignorant, he also demonstrated an impressive mean streak by introducing a bill this session “that would remove protections for gay, lesbian and transgender students from an anti-bullying law passed in 2007.” (More on that here.)

Iowa politics-watchers, who do you think is the most embarrassingly ill-informed member of the Iowa legislature? Make your case in this thread or e-mail me confidentially: desmoinesdem AT yahoo.com.  

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When wingnuts collide

I'm grateful that the Iowa Independent bloggers listen to our local Rush Limbaugh clones so I don't have to. If anything newsworthy comes out of some right-wing radio show, I can read about it online.  

I learned recently that no matter how crazy Congressman Steve King seems, there are some conservatives who think he should be further outside the mainstream.

After the jump I have a few thoughts on the spat between King and wingnut Bill Salier, best known for almost beating establishment favorite Greg Ganske in the 2002 Republican Senate primary.

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At least two Iowa Republicans understand judicial review

On Tuesday I complained that I hadn't heard any Republicans stand up and defend the Supreme Court's authority to strike down unconstitutional laws.

Today I need to give credit to former Governor Terry Branstad and his chief of staff, Doug Gross, because they went on record supporting the concepts of separation of powers and judicial review, even though they sometimes disagree with the Iowa Supreme Court's decisions.

The details are after the jump.

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Let's try this one more time

I'm still waiting for some Republican, any Republican, to explain the concept of judicial review to religious conservatives who refuse to accept the Iowa Supreme Court's ruling in Varnum v Brien.

GOP moderates led by Doug Gross have been warning that Republican candidates won't win in 2010 if gay marriage is their only campaign issue. But I haven't heard anyone challenge the assertion by many conservatives that the Supreme Court's decision is just an opinion with no legal force.

Since no Republican has stepped up to the plate, I'm offering a brief lesson on judicial review after the jump.

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