Retention vote may put politics into court system

Mark McCormick, a former Iowa Supreme Court justice, said Wednesday the retention vote will have a negative impact on the court to do its work but it won't deter those who aspire to be on the bench.

“It won't have a chilling effect because it's unlikely to occur again,” McCormick, a Des Moines attorney, said. “Judges will  be willing to risk making an unpopular decisions.”

Chief Justice Marsha Ternus and associate justices David Baker and Michael Streit were voted out Tuesday – about 54 to 55 percent were against retention and about 46 percent favored it, according to election results provided Wednesday.

Those in favor of retention seemed to reside in the larger areas and those against lived in more rural areas.

Todd Pettys, University of Iowa law professor, said he's concerned because the “heavily politicized vote is inconsistent with the core judicial values” and he disagrees with McCormick and thinks it will  deter some from applying if they have to campaign.

Bob Vander Plaats, who organized Iowa for Freedom to oust the justices, said he doesn't think this election will hurt the process,  but it will force judges to be “more constitutional and less activist.”

Pettys said the justices in the last month went out and attempted to explain the Varnum decision, which declared the ban on same-sex marriage unconstitutional because it violated equal rights protection. But explaining the judicial methods wasn't enough to calm those who oppose same-sex marriage.

McCormick said those supporting the justices, like Fair Courts for Us, couldn't compete with Vander Plaats and the others connected with Iowa for Freedom.

“It was too little, too late,” McCormick said. “Eight weeks of TV attack ads against the three, accusing them of being activist judges, whatever that means, alleging they were misbehaving, will affect the courts.

“The only bright spot is that voters distinguished between the campaign against the three justices and the other 68 judges up for retention,” McCormick continued.

Polk County District Judge Robert Hanson, who initially ruled in favor of same-sex marriage before Varnum went to the higher court, won his retention vote.

Campaign money from outside sources including the National Organization for Marriage, the American Families Association, the Family Research Council, the Campaign for Working Families and Citizens United spent nearly $800,000 to oust the justices, according to Justice at Stake Campaign, a Washington D.C. watchdog group to keep courts fair and impartial.

Fair Courts for Us reported spending nearly $400,000 in support of the justices, raising total Iowa election costs to $1.2 million, according to Justice at Stake. More than half, about $700,000, came from out of state.

McCormick said as a former justice he knows the three vacancies at the end of December will adversely impact the court schedule but he just doesn't know how much. In 1978, there were three vacancies when justices retired that year over the course of four months but there was a nine member court at that time, so there was less impact.

David Boyd, state court administrator, said there will still be a quorum with four justices to continue work and make decisions but it will likely slow things down.

Boyd said the nominating commission could be convened as soon as the votes are certified on Nov. 29. The commission then has 60 days to select candidates to send to the governor. He then has 30 days to make a selection but doesn't have to take that much time.

Boyd said the selection process could take a few months or less.

Justice Mark Cady, chairman of nominating commission, said last month multiple vacancies could be handled at one time. The commission would just select several names to send to the governor.

Pettys and McCormick said it was possible that Gov. Culver could make the appointments before leaving office.

Gov.-elect Terry Branstad in a statement Tuesday cautioned Culver, saying it would be inappropriate to rush and make appointments before leaving office.

“I respect the fact that a lot of people were very upset about what the court did and I think they spoke out loudly,” Branstad said. “Iowans are very fair and reasonable people and they don't take these decisions lightly. But I think they felt that it was important to send a clear message to the court.

“I think it would be inappropriate to do anything that is hasty or is political in this situation. I think there needs to be some time to think this through very carefully.”

Culver said in a statement Wednesday he was reviewing the matter carefully and looking at past practices used by both Democratic and Republican administrations when there have been multiple vacancies.