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.
Ben Stone of the Iowa ACLU spoke next, and focused his comments on the money spent during the election campaigns. He noted that over half a million dollars flowed into the state, much of it from undisclosed donors, to pay for anti-retention television ads. Stone then segued into a discussion of Citizens United, and the need he sees for Congress to pass a disclosure statute to help us keep track of this kind of money. Indeed, he said that, while groups like the ACLU feel that their 501(c)(3) status precludes active political endorsements, many notable non-profit churches openly campaigned against retention-a circumstance he felt that the IRS has not done enough to investigate. Stone finished by suggesting that attempts at judicial intimidation-which the retention election plainly was-present a real threat to judicial independence, and by extension the rule of law and human rights.
Finally, Troy Price, political director of the group OneIowa, shed some light on just what happened during the campaign. Clearly frustrated at being outspent nearly 8 to 1, Price talked about the need to get a head start on 2012. He said the organization and urgency of the opposition caught everyone a little off guard this year, and the fight was lost almost before there was time to mobilize an effective counter campaign. Price's message was a call for continued dedication and vigilance. We need to try to keep interest and engagement high, he suggested, so that the same things don't happen the next time around.
The evening ended with some thoughtful questions from the audience, and the press coverage was generally very good. Perhaps the most alarming (in an "Is he serious?" kind of way) comments came from Bob Vander Plaats in his response to television reporters, following the event. He said that he hoped the remaining Justices would "do the honorable thing and resign their positions." Vander Plaats argued that, if other Justices' names were on the ballot, they'd be out, too -- so they should step down. That hardly seems likely. Indeed, the Court's pick for its new interim Chief -- Mark Cady, the very author of the Varnum opinion -- seems to suggest the Justices may still have a little fight left in them.
[image via Wikipedia]
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