The following is an email that I sent to the Iowa Justice Association list serve. This is the organization of plaintiff's lawyers in Iowa. The subject is the effort by Bob VanderPlats and lots of outside money to oust three Iowa Supreme Court justices this year on the retention vote because they joined in the unanimous Varnum decision that held the Iowa ban on gay marriage violated the equal protection clause. My thoughts in general on this issue and our method of judicial selection in Iowa.
In thinking about our upcoming retention vote and the implicit--and perhaps explicit--decision that we have to make about our current judicial system, I think that we need to keep in mind some important points:
1. Judges, human beings that they are (well, for the most part), make mistakes and have numerous foibles, and I'm talking about the better ones. Yet, we must look at our judicial selection and retention system as Churchill looked at democracy: the worst form of government, except when compared to all of the others. Compared to others, we coming out looking very good.
2. Judges, like jurors, walk into their positions with loads of pre-existing ideas, political, legal, philosophical, etc. We try to persuade them, but that can be mighty tough sometimes if they walk in with an attitude on an issue. That's why, I think, that this group tends to rejoice more when someone with a plaintiff's background gets appointed to the bench than when experienced defense counsel goes up. Not always, but usually. So, yes, judges do have imperfections, idiosyncrasies, and beliefs that create a great variety of perspectives. Given this, one of the amazing aspects of Varnum was the unanimity of the decision.
3. Those who claim that decision like Varnum should have been made in the political sphere have a strong argument. As a supporter of the conclusion of Varnum, I would have preferred that it would have been made by the legislature and not the courts. However, sometimes the courts have to go against the tide; maybe you like it (desegregation, one man [sic], one vote, abortion rights) or sometimes you don't (due process cases, striking down the New Deal legislation, striking down campaign finance legislation)—all depending on your political point of view, of course. Whether one likes an "activist" court seems to go along with whether one likes the outcome. It's gone both ways over time, sometimes left, sometimes right. But the courts have to do what they have to do--if really forced to. (I have a hard time believing all of the Iowa Supreme Court wanted to get out front on an issue like Varnum, as I don't think that they're naive about the potential public response.)
4. If any of the current Supreme Court justices are voted out, it will have a chilling effect on all future court decisions and allow electoral politics--often at its most base--to infect our judicial system. Those who disapprove of the Varnum decision do have political remedies, and these they should pursue.
5. This really isn't about individual justices (as it should be), but it's about attempting to control the judiciary in a new & very harmful way. It's like picking three soldiers at random to be shot in order booster the morale of the troops. This motivational tool isn't one that we should take up. It's a crude tool even with politicians, but they know that it comes with the job; it shouldn't be so for judges.
Enough for now. I think that this is an important issue for all lawyers and all citizens in Iowa. Thanks for allowing me to share. And vote.