Litigation

After IA Vote, Scrutiny for Merit Selection

By Peter Hardin

Iowans’ vote on Tuesday to oust three of their Supreme Court justices over a same-sex marriage ruling is bringing scrutiny to the state’s merit-based system for selecting judges. (Booted were Chief Justice Marsha Ternus and Justices Michael Streit and David Baker.)

“Those in favor of keeping the Justices believe the retention fight could set a dangerous precedent in future races, while many of those who wanted the Justices thrown out, believe the system is flawed and needs to be replaced,” reported ABC 5-WOI TV.

In a unanimous decision, Iowa’s high court in 2009 threw out as unconstitutional a ban on same-sex marriage. National groups and social conservatives in Iowa pounced on the ruling to press in a highly organized drive for ouster of the three justices who faced retention elections this week. The ouster campaign succeeded.

“We’re opening up a conversation here in Iowa about how we select and retain our judges,”  Drake University professor Rachel Paine Caufield told an interviewer.

Opinion on the vote remained sharply split. A Des Moines Register editorial said the retention vote dealt “a body blow to the principle of an independent judiciary insulated from popular sentiment.” It concluded:

“Tuesday’s defeat of three justices will leave a black mark on Iowa history. There clearly is a need for a refresher course on the concepts of separation of powers, checks and balances and the role of the courts in defending the liberties of minorities. If any good comes of this election, the anti-retention campaign spawned an extraordinary counter campaign that crossed party lines and included business and religious leaders and ordinary citizens who care about protecting Iowa’s courts from being politicized. That coalition must continue a public education effort to counter future anti-retention campaigns waged by single-issue critics using out-of-state money.”

But Iowa Family Policy Center President Chuck Hurley applauded the vote as a stand against “judicial tyranny,” according to an Iowa Independent article. Hurley added:

?God is our ultimate authority, and we think that we did God?s will by standing up to the three judges who would try to redefine God?s institution and say that marriage is anything other than one man and one woman.”

There was heavy coverage in the Des Moines Register. In addition to the editorial, entitled “Everyone lost in judicial retention election,” there were news articles headlined “Justices’ removal complicates court calendar,” “Gay-rights groups decry justices’ ouster,“ “Strong rural ‘no’ vote noted in justices’ ouster,” and “Democratic leader in Iowa Senate vows he’ll block vote on gay marriage.” A commentary was headlined, “Hansen: No middle ground on removing justices.”

In national news media coverage, a Washington Post article was headlined, “Gay marriage fight targeted Iowa judges, politicized rulings.” Adam Skaggs of the Brennan Center for Justice, a Justice at Stake partner, voiced concern about the high spending by out-of-state interest groups:

“There is the worry that the groups that were successful in this campaign will say this is a strategy we want to replicate in other states whenever judges make a decision we disagree with. Under our system we want judges deciding cases based on the law and the facts of a single case, not looking over their shoulders wondering if it going to unleash attack ads.”

Articles about the retention election also appeared in National Journal and the Wall Street Journal law blog.

In his Election Law Blog, scholar Rick Hasen wrote, “I think the Iowa result is only going to embolden groups to fight even harder in judicial elections next time around….I’m very pessimistic about how elected judges are going to be able to handle the pressure.” You can read all about the retention election in Gavel Grab and by visiting Justice at Stake’s Judicial Election 2010  page.

Full post as published by The Gavel on November 04, 2010 (boomark / email).