The magic words “gay marriage” mean that this is now officially a buzzworthy topic in the blogosphere, even though it’s really just a basic PoliSci problem dressed up in “gay marriage” clothing. Everyone wants courts to be independent enough to issue unfavorable rulings that the majority might not like; it’s the only way to protect minority rights, after all. But then, everyone (or almost everyone) also wants courts to be accountable somehow so that they’re not tying the majority’s hands with nutty extraconstitutional rulings. Iowa’s solution: Let the governor appoint supreme court justices but put each one to a “retention” vote every eight years. That’s a nice long period of time during which they can rule however they want without worrying too much about elections, followed by a referendum by the public on how they did. A happy compromise!
Or … not so happy?
Vote totals from 96 percent of Iowa’s 1,774 precincts showed Chief Justice Marsha Ternus and Justices David Baker and Michael Streit with less than the simple majority needed to stay on the bench.
Their removal marked the first time an Iowa Supreme Court justice has not been retained since 1962, when the merit selection and retention system for judges was adopted…
The decision is expected to echo to courts throughout the country, as conservative activists had hoped. “It appears we’re headed for a resounding victory tonight and a historic moment in the state of Iowa,” said Bob Vander Plaats, the Sioux City businessman who led a campaign to remove the justices because of the 2009 gay marriage ruling. “The people of Iowa stood up in record numbers and sent a message … that it is ‘We the people,’ not ‘We the courts.'”
In a statement issued early today, the three justices said: “We hope Iowans will continue to support Iowa’s merit selection system for appointing judges. This system helps ensure that judges base their decisions on the law and the Constitution and nothing else. Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”
Here’s the full statement from the three defeated justices. Their replacements will be appointed by incoming governor Terry Branstad, the newly elected Republican who signed the state’s Defense of Marriage Act during his first term 12 years ago. One potential problem with the “retention” framework is that it doesn’t insulate judges from popular referendums as well as it purports to. For instance, the gay marriage ruling that got these three tossed was actually endorsed by all seven justices; the next one will be up for election in 2012, and may well be looking to “atone” somehow in his rulings before then if he gets the opportunity. That’s inevitable in a system where judges have to face the electorate at any point, but like I said up top, it comes at the price of total independence. (Imagine how desegregation rulings in the 50s might have differed if federal judges couldn’t rest easy in knowing that they had lifetime tenure.) Another potential problem is judges being sucked into elaborate campaigns before each vote to defend their decisions. The three who were removed yesterday spent no money on running for retention, but the next ones might try to fund an ad campaign or, worse, cozy up to some sort of special interest that’ll fund an ad campaign on their behalf. But again, these are problems that are necessarily priced into the idea of putting judges to a vote. It could be worse: In some states, judges are elected by law and run for reelection frequently. In those circumstances, I don’t know why the state in question doesn’t do away with the power of judicial review entirely and just let the legislature do whatever it wants. In practice, it amounts to — almost — the same thing.
Here’s Bob Vander Plaats, whom you may remember as Huckabee’s “true conservative” choice in the gubernatorial primary, cheering yesterday’s results.