116 3rd St SE
Cedar Rapids, Iowa 52401
By Iowa City Press-Citizen
We've said before that Iowa's merit-based judicial appointment and retention system worked nearly flawlessly from 1962 - when voters statewide first approved the system through a constitutional amendment - until 2010, when a majority of voters statewide decided to oust three, well qualified, hard-working members of the Iowa Supreme Court.
During those first 48 years, voters found only four lower court judges had abused their position and authority so egregiously that they need to be denied retention. Those four were removed for questionable, unprofessional behavior rather than for any controversial rulings.
Last year, however, an opposition group (funded largely by out-of-state money) began a campaign to deny retention to the three justices on the midterm election ballot. Although there were a few additional reasons given for voting specifically against the chief justice, Marsha Ternus, the “Vote No” campaign primarily was a reaction to the Iowa Supreme Court's unanimous 2009 ruling on marriage equality for gay and lesbian citizens.
Despite pleas from Iowa's business and legal community, despite all evidence that the Iowa court system is ranked highly for stability and fairness, a majority of voters statewide came out Nov. 2, 2010, and voted against retaining Ternus and justices Michael Streit and David Baker.
The election results have been described as the equivalent of pouring sugar into the gas tank of Iowa's judiciary. Todd Pettys of the University of Iowa Law School recently went as far as to advocate that the 2010 election results suggest the retention process needs a thorough update.
In an article to be published in a forthcoming issue of the Buffalo Law Review, Pettys concludes that Iowa and other states either should take the drastic step of “(abandoning) judicial retention elections altogether and (limiting) appointed state judges to single terms,” or the states need TO encourage “judges and their defenders” to “set aside their historic reluctance to engage citizens in civil discourse about controversial rulings and their legal and moral underpinnings.”
Pettys is right that the only real problem with Iowa's current judicial nominating system is that it all but ties the hands of judges from defending themselves against any organized efforts to unseat them. Especially when that negative information is all potential voters ever hear about the judges in question. Especially when that negative information is focused on a single ruling on an emotionally packed, controversial issue - such as marriage equality.
We continue to hope that our fellows Iowans, after realizing the damage that could be done to the state's judiciary if other outside interest groups decided to pour money into future retention elections, will recommit themselves to keeping politics out of the judicial process as much as possible.
But until such an optimistic hope becomes reality, judges in Iowa will have to learn how to defend themselves passionately and effectively.