Legal Commentary

Thanks to Dan and crew for inviting me back, I?m thrilled to be here.  I am just about to send out a short online-type piece explaining some of my thoughts about the judicial retention elections last month here in Iowa.  As you probably know, a coalition of social conservatives managed to vote out the three Iowa Supreme Court justices that were up for retention last month.  This, of course, was a retaliation vote for last year?s unanimous decision upholding same-sex marriage.  The story of the campaign is certainly interesting enough: Nearly a million dollars in anti-retention support money flowed in from out of state, and several Iowa churches openly defied the IRS by campaigning vigorously against the judges.  In the end, the anti-retention forces got the support of the simple majority necessary to oust the three justices on the ballot.

And the fun has continued even after the election.  Anti-retention leader Bob Vander Plaats?a failed gubernatorial candidate and former high school principal?likened the remaining justices to ?teens who flee a beer party? and called on them to ?do the honorable thing [and] share the punishment of their peers? by resigning.  I kid you not.   The justices responded by electing Mark Cady?author of the same-sex opinion?to be their new Chief.   Besides the obvious substantive statement, Cady?s elevation has a certain political irony.   He was appointed back in 1998 by former Republican Governor Terry Branstad, who came out of retirement to reclaim his old office on the same night as the judges? ouster.  This time around, Branstad has made it disturbingly clear that only certain political viewpoints need apply for the Supreme Court, reportedly warning the judicial nominating commission that ?only candidates who respect Iowa voters? rejection of last year?s same sex marriage ruling should be considered." 

Aside from the all the ugly politics, the retention election has gotten me thinking about the structure of the Missouri Plan for judicial selection, which Iowa (like many states) has adopted.  Pursuant to Iowa?s version of the Plan, a nonpartisan nominating commission forwards three names to the Governor, who then makes a selection.  The judge then appear on the ballot periodically for a simple majority retention vote by the people.  This past election has, I think, demonstrated a certain weakness in that structure.   It seems problematic, to me at least, that judges who are charged with protecting the constitutional rights of (sometimes unpopular) minority groups should face retribution at the hands of a simple majority of voters.  We wouldn?t let a simple majority change the Constitution?that, after all, requires a heightened demonstration of political will?but we do allow them to tyrannize the constitutional court.  My modest suggestion is that a non-retention vote should require some kind of supermajority to succeed.  This, I think, would help ensure that it is truly ?the People?, not some temporarily coalesced majority, which has the authority to say when a judge has overstepped his or her constitutional bounds.  But maybe that?s a bad idea?and, if so, I?m sure you?ll let me know why.