Will Gay Marriage Decision Cost Iowa Justices Their Jobs?
By John Gramlich, Staff Writer
Marsha Ternus, the chief justice of the Iowa Supreme Court, is unopposed in her bid for reelection this November. It will probably be the toughest campaign of her life.
Ternus, along with two of her colleagues on the court, find themselves in a situation rarely encountered by appointed judges in the United States. They are the targets of an organized effort to turn a judicial retention election — a simple "yes" or "no" vote on whether an initially appointed judge should remain on the bench — into a political battle.
The election is drawing national money and attention, and already has more in common with a contested race for governor or attorney general than it does with the ordinarily mundane process of voting on a sitting judge's record, with no other names on the ballot.
The unusual effort is the brainchild of Bob Vander Plaats, a well-known figure in Iowa politics who waged a strong campaign in the state's Republican gubernatorial primary in June. Vander Plaats, a social conservative, now is trying to persuade a majority of Iowans to vote "no" on the retention of Ternus and justices David Baker and Michael Streit as a way to punish them for their role in a 7-0 Supreme Court ruling last year that legalized same-sex marriage in Iowa.
Ternus, Baker and Streit are the only members of the court who face a retention vote this year, and ousting them would trigger a process in which the governor — currently Democrat Chet Culver — would name three replacements. It would have no impact on the gay-marriage ruling itself.
Even though it was unanimous, the high court's ruling has been controversial since it was handed down last April. It made Iowa the first state in the Midwest to allow gays and lesbians to wed, and conservatives are upset that Democrats who control the General Assembly have refused to give residents a direct say on a constitutional amendment to ban gay marriage, which could overturn the court's ruling.
While gay marriage is the stated focus of Vander Plaats' campaign, supporters and critics alike agree that the election is about far more than same-sex weddings, and that it reaches beyond Iowa. What is really at stake, they say, is the future of the state judiciary in America, and whether appointed judges in states that do not have contested judicial elections — and who may not be comfortable with campaigning — will start to become beholden to popular opinion in ways they never have before.
"I think it's fair to say that it gets judges' attention around the country," says Seth Andersen, executive director of the American Judicature Society, a court-reform group at Drake University in Des Moines.
Vander Plaats acknowledges that he is trying to send a message. He believes appointed judges in Iowa and other states have little accountability to the people, giving them broad latitude to make statewide decisions without concern over what residents prefer. Not only can judges redefine marriage, he says, "they can redefine who should pay taxes and how much, who can own and carry a gun and whose private property rights get protected — or do not."
But to critics of Vander Plaats, judicial independence is precisely the point, and they say an orchestrated effort to punish a trio of judges for a single decision that was unpopular among many citizens will have a chilling effect on other potentially unpopular judicial decisions in the future.
Meanwhile, the three judges at the center of the campaign have said virtually nothing at all. They have not granted media interviews regarding the retention election, and though they legally could form committees to raise money and fend off the challenge that is coming at them from Vander Plaats, they have not done that. Courts administrator David Boyd — who knows them well — says they have no intention of becoming politicians.
"They could, they haven't, and they won't," Boyd told Stateline , noting that outside organizations will likely have to speak and raise money on the judges' behalf.
Judicial politics 'foreign' to Iowa
Voters in 21 states elect their high court judges directly, but Iowa and a number of other states use some form of "merit selection." Under most statewide merit selection systems, a nominating panel submits the names of potential judges to the governor, who chooses among the options given to him or her. Voters then can weigh in on those judges by choosing to keep them or remove them in regular retention elections, with no other names on the ballot. In practice, very few are ever rejected.
The system, pioneered by Missouri in 1940, is not perfect. Questions have been raised in many states, for example, about whether the panel that initially submits the names of potential judges to the governor is tinged by politics, even though it is called nonpartisan. In Iowa, seven of the 15 members of the panel that nominates potential Supreme Court justices are Democrats and another seven are members of the Iowa State Bar Association, a lawyers' group that is frequently characterized as Democratic-leaning. The final member of the panel is a sitting Iowa Supreme Court justice.
By and large, however, merit selection has become a favorite of court-reform groups because retention elections can serve as a way to keep judges accountable to the public while sharply reducing the influence of special interests in head-to-head judicial races. The Brennan Center for Justice issued a report last month documenting a surge in costs for judicial elections over the past decade, and critics of such contests say huge campaign contributions from trial lawyers and pro-business groups, nearly always on opposing sides, raise questions about whether elected judges can remain neutral.
"If a judge has been campaigning and asking special interests for money," says Norbert Kaut, a spokesman with Iowans for Fair and Impartial Courts, "that undermines and corrodes the faith that the citizens have in their court system."
Kaut and others say this year's campaign by Vander Plaats is historically significant because it injects national politics and money into a retention election that ordinarily would be free of both elements. The influence of well-funded outside groups on judicial elections, Kaut says, is "really quite foreign to us in Iowa."
Retention elections have been used before as a way to punish judges for politically unpopular decisions. In previous decades, state high court justices in California, Nebraska and Tennessee have been targeted for defeat in retention elections, sometimes because of a single unpopular decision over a social issue such as the death penalty. This year, efforts also are under way in Illinois and Kansas to oust sitting state high court judges in retention elections.
What sets this year's campaign in Iowa apart from earlier initiatives is that Vander Plaats is trying to remove nearly half of a state's highest court and that he is mounting an unusually high-profile challenge.
Meanwhile, a sitting state Supreme Court justice from Alabama, Tom Parker, last month took the extremely unusual step of weighing in on Iowa's election, publishing an op-ed in The Des Moines Register that urged Iowans to punish Ternus, Streit and Baker for their decision on gay marriage and attacking the state's method of choosing judges. Alabama holds head-to-head judicial elections, and Parker faces reelection this year in his home state.
In an interview, Parker called the huge sums raised by many judicial candidates in Alabama "obscene." But he said that providing a direct choice to the people provides a level of accountability that the merit selection systems cannot provide. And he said that, in the end, the quality of the candidate is more important than the money raised.
"I've been outspent by huge multipliers in my elections," Parker said, "but it has not made a difference."
But the pro-retention side has some big-name opposition available to counter the arguments of Parker and Vander Plaats. Former U.S. Supreme Court Justice Sandra Day O'Connor visited Des Moines on September 8 to argue in favor of merit selection. "The health of the nation is affected by the system we use to pick judges," O'Connor said. "As Iowa goes, so goes the nation."