No retention drama in 2016. But keep your fingers crossed
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24 Hour Dorman
So all’s quiet on the Iowa judicial retention front, at this hour.
With all the hubbub swirling around a vacancy on the U.S. Supreme Court, it’s easy to forget that three Iowa Supreme Court justices are on the ballot in November. Justices Daryl Hecht and Brent Appel and Chief Justice Mark Cady all face a retention vote.
It wasn’t all that long ago that retention barely rated mention. Then came 2010, when religious conservatives led by Bob Vander Plaats and his Family Leader organization successfully campaigned to toss three justices off the court. Their offense was joining the unanimous 2009 Varnum ruling striking down Iowa’s ban on same-sex marriages.
In 2012, a similar effort to oust Justice David Wiggins failed. But our Family Leaders didn’t exactly surrender.
“We are definitely not going to stop here,” said Greg Baker, then Family Leader political director, now executive director of the group’s “ambassador network,” on election night 2012. On the same night, Vander Plaats declined to predict what would happen in 2016.
So I called the Family Leader to see what Vander Plaats has to say now about this fall’s retention vote. The group’s communications director, Drew Zahn, was kind enough to check.
“Our involvement in the 2016 election still is being considered, but we have no current plans in place to engage in the retention vote,” Zahn told me in a brief email.
So I guess we can all rest easy, unless you’re concerned about the vast expanses of wiggle room left by “current” and “in place.” Or maybe you recall the last two judge-hunting expeditions led by Vander Plaats were launched in August.
It’s true Hecht, Appel and Cady joined the Varnum decision. Heck, it was Cady who wrote the ruling. He was appointed to the Supreme Court in 1998 by Gov. Terry Branstad. Hecht and Appel each were appointed in 2006 by Gov. Tom Vilsack.
As red meat surefire wedge issues go. marriage ain’t what it used to be. A landmark United States Supreme Court ruling made marriage equality the law of the land last year. Polls show most Iowans think it’s perfectly swell to extend marriage rights to gay couples. None of the doom-and-gloom predictions of societal collapse spun by the fire-and-brimstone caucus have come to pass.
But there are piles of other court rulings determined hunters likely could sift through and find ammunition. Criminal cases, regulatory cases, you name it. The court struck down a ban on so-called telemedicine abortions, although the ruling was a unanimous slam dunk. A ruling related to the high-stakes Des Moines Water Works lawsuit against rural counties cover nitrate runoff should come this summer.
Much of the campaign against Wiggins focused on a yanked-out-of-context remark he made about “getting around the constitution.” We live in a time when fairly weak sauce can be whipped into a 12-course media dinner. Threats to “religious liberty,” for instance, can be baked up as fast as a wedding cake.
Since 2012, we’ve seen efforts in other states to oust justices. In 2014 in Tennessee, the dreaded Koch brothers and others spent considerable bucks trying to oust three Supreme Court justices.
Some attacks in that campaign focused on Obamacare, even though the court had never heard a case on the law. In the end, the justices kept their seats.
There may be Iowa Republicans and conservatives beyond the Vander Plaatsian wing of the GOP who would like to give Branstad a last stab at naming some justices, potentially forging a lasting ‘stache-jority along with the three he appointed in 2011.
True, the state Judicial Nominating Commission gets first pick before forwarding finalists to Branstad. But all eight commissioners were appointed by Branstad, and all are Republicans. (Clarification: Along with the eight commissioners appointed by Branstad, eight representatives elected by Iowa lawyers also serve on the commission. It’s chaired by the most senior Supreme Court Justice who is not the chief justice.)
Also, if Donald Trump is the GOP nominee, the prospects of a Democratic wave and lousy Republican turnout could be a big concern for Iowa conservatives.
They might see a retention drive against “activist judges” as a route to juice enthusiasm in the ranks, although that strategy largely failed in 2012.
Maybe some Republicans would see a campaign to oust Iowa justices as a natural compliment to U.S. Sen. Chuck Grassley’s refusal to consider President Barack Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. But Grassley probably would appreciate far less emphasis on the judicial fight.
Don’t mind me, I’m just spinning theories and wild speculation. Failure to boot Wiggins in 2012, the steady decline of social issues as vote-getting wedges and a Republican Party struggling to hold itself together with chewing gum and shoestrings add up to making an organized retention effort unlikely.
That’s good news, if you don’t like seeing Iowa’s top court become a political chew toy. But election years are strange beasts, and this one is among the strangest ever. If I were a justice on the ballot, I’d be relieved, confident and ever vigilant.
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