Iowa's Example: Voters May Fire More Judges

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DES MOINES, Iowa -- A little-watched election in Iowa last November, when Iowans voted three State Supreme Court justices off the bench, may change the way this country views its courts.

Analysts believe the justices' ruling that legalized gay marriage was the reason. The question now is whether activists in other states will target their judges, too.

Conservative activist Bob Vander Plaats, who led the campaign to removed the Iowa justices, said voters were just using the political tool the government gave them.

"They gave us the retention vote for the people to hold a court in check if necessary. The retention vote wasn't just supposed to be a 'That a boy, you're doing a good job, let's keep going," said Vander Plaats, president of The Family Leader.


Historic Vote

The vote ousting the justices has sparked a nationwide debate over the balance between judicial independence and accountability to voters.

It was an historic vote. Only once before, in California in 1986, have voters removed multiple state supreme court justices.

Iowa's decision also marks a turning point in campaign financing. From 2000 to 2009, just $2.2 million was spent nationwide on retention elections. In 2010 alone, however, that number grew to $4.6 million, including close to $1 million in Iowa alone.

Those numbers concern many in the legal community, including Adam Skaggs, counsel for the Democracy Program at the New York University School of Law's Brennan Center for Justice.

"Judges are supposed to be accountable to the law and the Constitution -- not to special interest groups, not to political forces" Skaggs told CBN News.

Skaggs and others are wondering whether conservatives in other states will seize on the momentum generated in Iowa and target judges around the country that face retention elections next year.

"I think there's a lot of concern among observers that there will be more and more politics," he said. "And more and more money pouring into states that have tried to insulate their selection of judges from politics and money by using retention elections."


Merit-Selection System

Iowa's Chief Justice Mark Cady said retention elections form an integral part of the merit-selection system of choosing judges.

"Merit selection was set up to remove politics from the process," Cady said. The state's chief justice has been a huge advocate for the system, which is used in 15 other states.

Merit selection creates a non-partisan commission to review judicial candidates and create a list of the best. The governor selects from that list for the bench. Then, at the next general election, voters decide whether to retain them or not.

Chief Justice Cady said he fears that this latest retention vote threatens to undermine the process. He and others believe elections that focus on a particular ruling politicize the judiciary.

"The more long-term worry and concern is that if retention elections are going to be transformed into campaigns where judges are going to have to go out and spend their time campaigning," he explained.

However, conservatives like Vander Plaats say voters last November were just responding to activist judges legislating from the bench.

"I would say they politicized the process," Vander Plaats said. "We just operated the vehicle they gave us."

Iowa's new Republican House Speaker Kraig Paulsen said he believes the retention vote reflected overall dissatisfaction with government. In Iowa, voters not only rejected three justices, they also said good-bye to their governor and turned the House over to the GOP.

"All three branches of government, the electorate addressed in this last election cycle," Paulsen noted. "And you know what? We're still functioning, we're moving forward, the state's going to end up stronger. That's the way the system was designed and it's working."


Greater Transparency

Justice Cady said the best way to move forward at this point is for the courts to show greater transparency. But he's not backing down on the ruling that started it all.

Cady said the decision to legalize gay marriage continues a proud history of equal protection cases in Iowa, starting with the first Supreme Court decision in 1839.

In fact, the court's outdoor sculpture honors a history of judges who have "shattered the silence of inequality."

"We understand that, at times, we can make decisions that many in the public do not agree with," Cady said. "But that's the nature of our job."

Drake University's Dr. Dennis Goldford said Iowans often don't understand how the courts work and that Justice Cady and others can help to fill the gap.

"I don't think it's necessarily giving a blow-by-blow account of every aspect of the court's decision-making process on any case," Goldford explained. "But it's being clearer about what it is that judges do and what it is that courts do."


The 'People's Court'

In next year's elections, Iowans will have the opportunity to vote on another justice involved in the gay marriage ruling. In the meantime, conservatives are pressing lawmakers for a marriage amendment bill which would give voters the final say on the issue.

And with evangelical conservatives expected to dominate the caucuses, many presidential candidates may be forced to weigh in on the debate as well.

In a 1996 speech, U.S. Supreme Court Chief Justice William Rehnquist described judicial independence as one of the crown jewels of our system of government.

What's at stake in Iowa and perhaps in other states soon is when and how our judges become accountable to the people they serve.

--Originally published March 7, 2011

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Heather Sells

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