The following is a piece that I wrote for our local paper. They haven't seen fit to print it (yet?), but, hey, what's a blog for but to serve as our electronic street corner (and perhaps as effective, but if you've read this far . . . .). Anyway, my thoughts written earlier this month:
Failed Republican gubernatorial candidate Bob Vander Plaats has turned his attention this fall from running for governor to leading a campaign to radically change our judicial system. In doing so, he’s enlisted the aid of Newt Gingrich and a couple of hundred thousand dollars in out-of-state money. The motive behind the movement spearheaded by Vander Plaats is the Iowa Supreme court’s unanimous decision in Varnum v. Brien. Varnum rules that denying the right of marriage to gays and lesbians in Iowa violates the equal protection clause of the Iowa Constitution. Vander Plaats and his supporters want to express their dissatisfaction and to intimidate any future court decisions that fail to support their agenda. The intend to accomplish this by voting against retaining the three Iowa Supreme Court justices who happen to be up for a retention vote this year.
Even if one disagrees with extending constitutional rights to gays and lesbians and wants to join Vander Plaats and his supporters in seeking to overturn the decision, there is a political remedy. Those seeking to overturn this right can work to convince the Iowa legislature and Iowa voters to amend our Constitution and adopt a provision that exempts gays and lesbians from equal protection of the laws governing marriage. To date, the Iowa legislature has refused to tamper with provisions governing this fundamental right.
If a majority votes against retaining the three Supreme Court justices on the ballot this fall, it will be the first time since our current system of judicial selection began in 1962 that a Supreme Court justice is removed from office by a vote. If voted out, the three up for a retention votes, Chief Justice Ternus and Justices Streit and Baker, will have been chosen at random for retribution, since all of the members of the Court joined in the Varnum v. Brien decision. These three justices just happen to be the ones on the ballot this fall by way of a regular rotation.
What will it mean for justice in Iowa if a majority of voters remove any of these justices from office? The first conclusion certain to be drawn is that social conservatives dominate Iowa politics. However, more worrisome will be the conclusion that out-of-state money can come to Iowa to buy elections and judges. Republican gubernatorial candidate Terry Branstad, who appointed two of the justices that voted in favor of the Varnum decision during his earlier tenure as governor, proposes a different fundamental change to our current system. Branstad now wants the power to appoint all judges directly with the approval of the state senate. Branstad’s proposal would take the initial screening of candidates out of the hands of the non-partisan judicial nominating committees that provide the governor with two or three names from which to choose to fill a judgeship. Whether a Republican or a Democrat sits in the governor’s office, under the Branstad plan, judicial appointments will more often reflect repayment of political favors and adherence to party doctrine, something that our current systems tends to avoid.
Having practiced in Iowa from 1979 (with a brief stint in Illinois), I can report that taken as a whole, our judicial system and judicial selection system works about as well as one can hope in our democracy. In this assessment I’m not alone, as the U.S. Chamber of Commerce rates Iowa as the fifth best judicial system in the Union. The system is not perfect, nor are our judges infallible (the proof being that they sometimes rule against me and my clients), but taken as a whole, the voters of Iowa would be making a terrible decision and setting a terrible precedent if they vote to remove the three Supreme Court justices who are up for retention this fall. The real issue isn’t the propriety of a single ruling, but the ability of the judicial system to stand outside the political tides and to make decisions that may not prove popular. We alter such a system only to the peril of our liberties.