Streit: Retention election came down to politics vs. law

IOWA CITY – Former Iowa Supreme Court Justice Michael Streit said Thursday before joining a panel discussion of last year's retention election that the campaign behind ousting him and two others was a distortion of the appellate process.

“We didn't take the law into our own hands,” Streit said. “The court had a duty to interpret the constitution and uphold the law. I don't feel we did anything wrong. We had no politics involved.”

An outspoken Streit joined four other law professors and journalists Thursday at the University of Iowa Law School to discuss and examine the retention election that led to the removal of him and Chief Justice Marsha Ternus and Associate Justice David Baker. The justices lost the retention election for their part in 2009 ruling that led to legalizing same sex marriage in the state.

Todd Pettys, UI law professor asked questions among the panelists- Streit; David Purlmutter, chairman of UI Department of Journalism; Kathie Obradovich, political columnist for Des Moines Register; Seth Anderson, executive director of American Judicature Society; and Vanderbilt Law School Professor Brian Fitzpatrick.

Pettys asked the panelists to talk about law and politics and how these work together.

Streit said politicians demanded judges follow the popular vote, instead of ruling on the law. They insisted that judges become more political-to become “political weather vanes.”

“They kept saying it was the “will of the people” but who are these people,” Streit said. “There was no evidence of what the will of the people was (in Varnum).”

Streit said the courts can declare law unconstitutional and then the Legislature can amend it and take it to the people.

Obradovich said the campaign on one side was about education of merit selection process and about the courts, and the other side was politics.

“The politics won,” she said. “But the conversation needs to keep going forward and now conducted in the political realm.”

Purlmutter said he wouldn't characterize the election as one issue. Some people are just anti-incumbent and they are going to vote no. The strategy of the anti-retention campaign was effective. They were going out to places like churches and if all those 300 members felt the same way, then that multiplies in a couple thousand votes.

Most people didn't use to pay attention to retention on the ballot, Purlmutter said. Maybe 5 or 10 percent would vote against it but that changed over time and it steadily increased. This didn't just happened last year.

“People (typically) don't like lawyers and judges,” Purlmutter said.

Fitzpatrick said he had concerns about the merit selection process. His concerns were based on research he's done and studies conducted. Many people believe politics are an inevitable part of the judiciary. The only question is who's politics are driving the judiciary.

“Judges make law and law is what judges say it is,” Fitzpatrick said. “The constitution isn't clear. Doctrines are invented by judges and those aren't clear. They reach rulings based on their opinions. It's inevitable.”

Fitzpatrick was mostly concerned about the lawyers on the commission appointed solely by the bar. Lawyers have their own interests, beliefs and values and its reflected in the judiciary. They tend to be more liberal according to surveys, he said.

“Doesn't mean you have to get rid of it (merit selection)-just change the (lawyer seats on ) commission,” Fitzpatrick said.

Streit said one change should be that the judges or justices can't sit back quietly and hope the voters understand who they are and that they don't want to be involved in politics. But he's not ready to say it's OK to raise campaign money.

Anderson said the fear is over time there will be a temptation for judges to become policy advocates-making a pledge of promise to rule a certain way.

Anderson said one change in the system could be to adopt an official judicial evaluation system similar to one in Colorado. The state conducts in-depth performance evaluations on judges by an independent agency. It suveys lawyers, litigants, law enforcement and others who observe judges or justices up for retention.