Iowa retention vote

  • January 7, 2011
    The effort in Iowa to oust state Supreme Court justices who voted in favor of a constitutional right to same-sex marriage did not end last fall at the ballot box when voters removed three of the justices who supported equality, writes Bert Brandenburg in an op-ed for The Washington Post.

    Brandenburg, executive director of Justice at Stake, notes that organizers behind the campaign against the Iowa justices have "vowed to impeach and remove the court's four remaining justices, who weren't up for election in November."

    Brandenburg continues:

    The debate may have started over same-sex marriage, but the specter of impeachment has transformed it into an assault on constitutional government. Impeaching judges to redress political grievances would trigger a political circus that would paralyze government and undermine courts. Witch hunts against judges could also threaten state economies by driving out investments that create jobs, since businesses count on stable courts to settle disputes.

    But there are deeper reasons why Iowans and Americans elsewhere need to catch their breath and avoid waging war on the courts.

    Impeachments of judges were not designed as a tool for this kind of political disagreement, and the reason is essential to our democracy. If courts can't make tough calls, they won't be able to uphold the Constitution and protect our rights.

     

  • December 7, 2010
    Guest Post

    By Ian Bartrum, Professor of Law, Drake University Law School
    The results of the judicial elections held here in Iowa last month were, simply put, disappointing. Our Supreme Court (pictured), and our state, lost three extremely talented, highly dedicated public servants -- Justices who have served Iowans very, very well for a number of years. Iowa, like many states, has adopted a version of the Missouri Plan of merit-based judicial selection, and, as part of the plan, the Justices of the Supreme Court appear periodically on the statewide ballot for a retention vote. This year, that vote was held in the shadow of the Court's controversial opinion in Varnum v. Brien, in which the Justices unanimously struck down the state's ban on same-sex marriage. A coalition of socially conservative Iowans, under the loose leadership of former high school principal Bob Vander Plaats, mounted a vigorous campaign to oust those Justices that happened to be up for retention. With the help of a tremendous influx of out of state money, Vander Plaats's campaign succeeded, and we now await the appointment of three new Justices.

    Recently, the American Constitution Society -- along with the Drake Constitutional Law Center, the American Civil Liberties Union of Iowa, and GLBT advocacy group OneIowa -- sponsored a panel discussion on the election and its lessons at the Embassy Club in downtown Des Moines. I moderated a group that included Iowa Supreme Court Justice David Wiggins (in the first public appearance by any Justice since the election), Ben Stone of the ACLU, and Troy Price of OneIowa. Partly owing to the Justice's appearance, we had quite a large turnout and a fair amount of media attention. Two television stations, public radio, and all the local papers were in attendance-and, as the event happened to coincide with the Justices announcing they had picked a new interim Chief Justice, we managed to get lead billing in a number of outlets.

    Justice Wiggins spoke first and expressed heartfelt disappointment over the loss of his colleagues. He emphasized, however, that he had lost faith in neither the Merit Selection system, nor in Iowans' ability to understand and vote on important issues. "It is what it is," he said, conjuring up his best Bill Belichick impersonation, "Now we have to move on." He did say that, in his nearly thirty years in the Iowa Bar, the judicial nominating commission and the Governor have always "picked the very best person for the job." Though he was clearly disappointed with results of the election, he also made it clear that he did not think the system was broken.

  • December 1, 2010

    As ACSblog has documented, recent events in Iowa have put the spotlight on judicial elections and their relationship to the big constitutional controversies of the day. Some prominent politicians, including Newt Gingrich and Mike Huckabee, have celebrated the unseating of three Iowa Supreme Court Justices who voted in favor of a constitutional right to same-sex marriage. Others have blasted this development as a threat to constitutionalism and the rule of law.

    While this debate rages on, an article forthcoming in the Columbia Law Review suggests a new lens through which to think about what happened in Iowa. In "Judicial Elections as Popular Constitutionalism," David Pozen argues that judicial elections can be understood as instruments of "popular constitutionalism" -- venues in which ordinary citizens confront, debate, and register their beliefs on state and national constitutional questions. "By subjecting their judges to periodic elections," Pozen notes, "more than three quarters of the states give citizens a powerful tool with which to check the judges' interpretive outputs, as well as a recurring focal point with which to stimulate and structure constitutional deliberation."

    Pozen explains that there is a legitimate case to be made that using judicial elections as tools of popular constitutionalism can promote democratic values by enhancing the public's engagement with the courts and the court's responsiveness to the public, thus tightening the link between voters and judges.

    But, Pozen says that these elections can, in a variety of ways, undermine the very democratic values they are meant to serve. "At the same time that it provides an important new framework and vocabulary with which to defend elective judiciaries," Pozen concludes, "popular constitutionalism also points the way toward an original critique. For in the service of aligning judges more closely with ‘the people,' judicial elections do more than threaten collateral damage to values such as legality and equality: They threaten to undermine the democratic aspirations of popular constitutionalism itself."