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Teaching judges a lesson in Iowa

COMMENTARY | November 03, 2010

Three state supreme court justices, under fire for ruling that a ban on same-sex marriage is unconstitutional, were ousted by voters Tuesday. Will such extreme action have any bearing on Iowa’s premiere position as a presidential bellwether state?

By Herb Strentz

DES MOINES—Iowa’s role as a bellwether state in the selection of presidential candidates took a blow in Tuesday’s elections — the punch coming from a curious source, the Iowa voter. The results of Tuesday’s election in Iowa might give one pause when it comes to Iowa’s place in the presidential campaign.

That’s because Iowa voters, for the first time ever, ousted a supreme court justice. They removed Chief Justice Marsha Ternus and two of her colleagues, Justices David Baker and Michael Streit, as well. The three were part of a 7-0 April 2009 decision that found a state law against same sex marriages to be unconstitutional because it advanced religious, not public interests.

Since 1962 in Iowa, judges and justices have been appointed by the governor from a list of candidates submitted to him by a nominating commission. Justices face retention votes every eight years.

This year’s anti-retention campaign to teach the Iowa judiciary a lesson was funded by more than $650,000, largely from conservative groups outside Iowa and backed strongly by strident Christian pastors in the state. (Groups supporting the justices spent about $200,000.)

So it’s reasonable to ask if Iowa politics are too driven by the religious right and voters too mean-spirited to be trusted with setting a desired tone for presidential elections. Or does Iowa just reflect what’s going on in the nation and hence will serve the GOP well as a screener for candidates?

For at least 30 years, Democrats and Republicans in other states have said Iowa plays an unmerited and, to them, troubling role in the winnowing of presidential candidates by dint of its first-in-the-nation presidential caucuses. Typically candidates who do not do well in the January or February caucuses in election years fall by the wayside. They fail Iowa’s multiple-question test on whether a potential candidate can raise money for the campaign, get out the vote, best rivals in head-to-head debates, and warm up to plain decent folks in kitchens, living rooms and high school gyms across the Hawkeye State.

Candidates who do well or — more importantly — who do better than expected are heralded by the news media as front runners and find more political contributions coming their way as they head onto the New Hampshire primary and subsequent campaign stops.

Such Iowa influence has been decried over the past 30 or so years by movers and shakers in other states who point out that Iowa with its 3 million people is relatively small and atypical in that its population is about 2.8 percent black, 4.5 percent Hispanic or Latin and about 90 percent white. (The comparative national figures are about 13, 16 and 65 percent, according to 2009 figures from the U.S. Census Bureau.) In addition, the argument goes, the duty and honor of having the first in the nation primary or caucus should be rotated among the states or shaped into regional primaries.

But Iowa with its caucus and New Hampshire with its primary have persevered in their first-in-the-nation status. Indeed, Iowa received a bump in 2008 when U.S. Sen. Barack Obama won the Democratic caucus — quelling fears about white reaction to a black candidate. The Iowa Supreme Court ruling on constitutional rights of gay couples also buffed up Iowa’s caucus credentials.

That was then; this is now.

The February 2012 caucus will not be much to write home about. The Democratic caucuses likely will be perfunctory, given the incumbency of President Obama. The Republican caucuses, given Tuesday’s election, will be no place for moderate Republicans — given the rightward and religious orientation of the Iowa GOP. 

For the next 15 months, any prospective GOP contender visiting Iowa had better not say anything on behalf of the judiciary or constitutional law as he or she makes the rounds of right-wing fortresses in the state. Longtime moderate Republican leaders in Iowa — icons from the 70s and 80s — supported retention of the supreme court justices. But no candidates running for office, Democratic or Republican, spoke up on behalf of the court, not even Republican Terry Branstad, who had appointed Ternus to the court when he was governor. Branstad, governor from 1982 to 1998, returned to office, easily defeating Democratic incumbent Chet Culver.

Other brief notes on the ousting of the Justices:

• Judge Robert Hanson, the Polk County (Des Moines) district court judge who wrote the initial opinion finding the same-sex marriage ban unconstitutional, was on the ballot for retention, too, and received 69 percent of the vote. He was not targeted in the TV ads against the supreme court justices, who each received about 46 percent support from 880,000 votes cast.

• Broadcast and print coverage of the anti-retention campaign followed the theme set by the religious right, making same-sex marriage the issue and not the integrity or independence of the judiciary. Can’t recall a night when I did not wind up shouting at the TV screen and news reporter for ignoring the issue of judicial independence.

• The Iowa Supreme Court has a history of constitutional law decisions that supported women’s rights and anti-slavery stands long before the federal government got around to it. Michael Gartner, former president of NBC news and Pulitzer prize winner for editorial writing when he owned the Ames Tribune, wrote a fine piece for Cityview, the alternative weekly in Des Moines, on the historic stature of the Iowa Supreme Court. But that approach was generally ignored by the Iowa media.

There is no "judicial independence"
Posted by brian
11/04/2010, 12:03 PM

Judicial independence is a myth, especially in states such as Iowa (and Washington, my home state) with elected judges. That may be good or bad depending on your perspective. Ask a litigant in federal court before a lifetime-appointed federal judge with "judgitis" and very definite political views that color his or her view of the law whether such judicial independence is a good thing. There are positives and negatives to both selection processes. Even in the federal judiciary, judges do not operate in a political vacuum. They are very conscious of the political impact of their decisions for their party (yes, most have some party preference and allegiance, or they wouldn't have been nominated in the first place).

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