By Nicholas Johnson and Paul Gowder
Iowa’s Justice David Wiggins, on November’s ballot, says, “I hope Iowa Supreme Court justices never have to raise money from political donors to ask for your vote.”
Whether the public should be voting for judges is, like many other legal issues, a matter of balancing.
“Democracy” suggests popular control of the language in constitutions and laws, which we have. On the other hand, America’s founders believed the legislative and executive branches need the check of a truly independent, non-political third branch. Popular participation in picking federal judges was limited to the people electing a president who would make, and senators who would consent to, judicial appointments. Once sworn in, judges could decide cases on the merits, with the protection of lifetime appointments.
Iowa strikes this political vs. independence balance with a merit system for nominating potential judges, their ultimate selection by the governor, and the absence of conventional election campaigns. However, one year after an Iowa Supreme Court justice’s first appointment, and every eight-year term thereafter, Iowans can vote whether to retain them.
The relevant factors in retention elections should be such things as the judges’ integrity, professional competence, judicial temperament, experience and service. Before the election, the Iowa Bar researches and publishes its evaluation of judges regarding these and other factors.
Two years ago, with three justices on the ballot, few if any citizens had complaints about these relevant qualities of the Iowa justices. The Bar approved all of them.
But some Iowans rejected a particular Iowa Supreme Court opinion, Varnum v. Brien. This well-researched, reasoned and written opinion was supported by every justice. The case required the court to address civil rights provisions of the Iowa Constitution as applied to an Iowa law banning same-sex marriage. The court concluded that religious organizations are free to define marriage however they choose. The State of Iowa, however, said the court, is restrained by its own Constitution from prohibiting same-sex marriage.
It was certainly a significant decision. But as a matter of Iowa constitutional interpretation, and legal opinion drafting, the opinion was in no way a radical departure from the mainstream of American law.
Why is the political decision to remove judges because of a single opinion we dislike not even in the best, selfish interests of offended citizens? Because ultimately we all benefit from a windbreaker in the storms brought on by political climate change. Our nation’s founders realized that 225 years ago, and it is no less true today.
And if we passionately disagree with courts’ decisions? We can elect governors to appoint different judges. If we don’t like a court’s interpretation of a statute, we can ask the legislature to change the law. If it’s a constitutional provision, we can organize to amend it.
Independent judges, uninfluenced by campaign contributions, and supported by the public, enable each of us to live under a “rule of law” rather than arbitrary and unchecked political decisions. If we protect them now, they’ll be able to protect us in the future.l Nicholas Johnson and Paul Gowder are faculty members at the University of Iowa College of Law. Comments: email@example.com or firstname.lastname@example.org