British friend would worry about independence of our judicial branch

William Hines

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Richard, Lord Acton, a British barrister, became an adoptive Iowan over 20 years ago when he married one of my law school colleagues, Patricia Nassif Acton. Thereafter, he spent half of each year in Cedar Rapids and half in London, where he was a member of the House of Lords.

Richard was a keen observer of Iowa's legal culture. In 1995, he co-authored with Patricia a prizewinning book in which they recounted the stories behind a number of the Iowa Supreme Court's most important civil rights decisions, many of which anticipated similar rulings on the national level by decades.

This history of civil rights leadership was cited approvingly in the controversial 2009 Varnum opinion, which set in motion the unprecedented campaign against the Supreme Court that culminated this fall in the defeat of all three justices up for retention.

I know Richard Acton was appalled at the disrespectful television blitz against the three justices, but he died on Oct. 10, before the non-retention vote and its troubling aftermath. If Richard were among us today, I know he would speak out about the attacks on the court and here is what I think he would say:

First and foremost, Richard would say: I can't believe this is happening in Iowa, a state famous for its clean, effective and responsive government, of which the court system is a key component. If the chairman of the U.S. Joint Chiefs of Staff understands that guaranteeing equal opportunities for gay and lesbian citizens is a “civil rights issue,” why didn't the usually tolerant voters of Iowa see the Varnum decision in that light? How can a few conservative politicians and religious leaders, personally dissatisfied with a single decision by the Court, unseat three justices solely because they joined in the unanimous Varnum ruling?

Richard would describe the recent non-retention vote as the most blatantly one-sided election campaign in Iowa history. Well-funded opponents of the Varnum decision flooded the Iowa airwaves with propaganda vilifying the three justices up for retention, completely ignoring the customary standards for evaluating a judge's performance.

Meanwhile, judicial ethics constrained the justices from speaking out, and supporters of the justices did nothing to counteract the anti-retention campaign until it was too late. Shocking as the non-retention vote was, however, it greatly overstates its significance to assert, as critics of the Court do, that the remaining four justices should read it as a clear invitation for them to resign voluntarily.

Finally, Richard would concede that, if the Varnum ruling continues to be highly unpopular with the citizens of Iowa, they will eventually amend the Iowa Constitution. The most common method is to have the proposed amendment adopted by two successive sessions of the General Assembly and then ratified by a majority vote of the people. A second method requires the convening of a constitutional convention. Neither method is quick or easy.

Critics of the Varnum decision apparently think they can orchestrate a third method to change it - get rid of the current justices, discourage highly qualified candidates from applying to replace them, and then pack the Iowa Supreme Court with judges who embrace the critics' agenda.

If it was wrong for opponents of the Varnum decision to abuse the retention process by punishing judges for a single decision with which they strongly disagreed, it is equally wrong for them now to urge changes that will interject politics into a judicial nominating process that has worked flawlessly for 50 years.

If Richard, Lord Acton was alive, he would warn Iowans that what is currently afoot is a dangerous attack on the independence of the state's judicial branch, and it must be countered quickly and responsibly before long-term damage is done to Iowa's courts.

N. William Hines is Professor of Law and Dean Emeritus at the University of Iowa. Comments: n-hines@uiowa.edu