After losing abortion rights, Iowa voters are considering a retention rejection

So, a press release from Justice Not Politics popped into my inbox.

You might recall the group opposed a push by religious conservatives, led by The Family Leader’s Bob Vander Plaats, in 2010 to remove three justices from the Iowa Supreme Court. It was retribution for the court’s unanimous ruling overturning a ban on same-sex marriage.

Conservatives used retention votes to register their displeasure with marriage equality, although their dire predictions never came to pass. Now some Iowans who favor reproductive rights are wondering whether they should do the same thing.

Justice David May is up for retention this fall. He joined the majority in a 4-3 ruling upholding Iowa’s extreme six-week abortion ban while laying the legal groundwork for restrictions to come.

Some opponents of the ruling are floating the idea of voting against May’s retention. The vote, they contend, should be a referendum of sorts on abortion rights in a state that doesn’t allow we the people to put a measure on the ballot.

“You have the final say. Every voter decides their criteria for any vote, regardless of whether it is a partisan election or a nonpartisan judicial retention vote,” Justice Not Politics contends.

But, later in the release, the group argues, “A justice or judge should not be kicked off the court because of a single decision we disagree with.”

Voters have the power, just please don’t use it to vote out a judge or justice.

In a recent Des Moines Register column, Rekha Basu introduced us to Lea DeLong, an abortion rights activist in Des Moines. She wrote a letter that’s been widely circulated arguing May’s retention is fair game, given the potential damage inflicted by upholding a law most Iowans oppose.

“Much as I don’t like the fundamental concept of doing this,” DeLong told Basu, “I think so many destructive lines have been crossed.”

The Iowa Bar Association fired back in a Register response column.

Bar association president Guy Cook and past president Cynthia C. Moser wrote “encouraging a vote of no on one justice as retribution for a ruling by the majority of the Iowa Supreme Court is unhealthy and unprincipled. Simply put, it unfairly attacks our institution and undermines judicial independence …

“As children, we all learned the timeless proverb that ‘two wrongs don’t make a right’ … “The heart of this maxim is rooted in the principle of moral integrity, appreciating that righteousness cannot be achieved through retaliatory actions.”

I and a lot of other people strongly opposed the conservative effort to toss justices over a single ruling. It flew in the face of Iowa’s merit selection process, designed decades ago to judge our judges on their professional performance, not on how they rule.

We stood on principle. We lost. And conservatives kept on marching.

In 2019, Republicans who run the Statehouse stacked the deck, making the merit selection process far more political.

Previously, the State Judicial Nominating Commission, which forwards Supreme Court and Court of Appeals nominees to the governor based on merit, was comprised of even numbers of bar association appointees and gubernatorial appointees. It was chaired by a senior Supreme Court justice.

Under the 2019 bill, the governor now appoints a nine-member majority on the 17-member commission with eight appointed by the bar. It’s no longer chaired by a justice, allowing instead for members of the commission to elect a chair. Republicans also changed the way the high court elects a chief justice.

"For the first time, a majority of the state nominating commission will be representing the people of Iowa instead of the bar and bench." Reynolds said in a statement after signing the bill in a private ceremony with the Family Leader and other conservative groups gathered ‘round.

An Iowa Poll at the time showed 54% of Iowans approved of the merit selection system without changes. Just 33 percent wanted changes.

So, three justices who joined the majority in upholding the abortion ban were picked by Reynolds under the new rules. Although another Reynolds pick, Chief Justice Susan Christensen, wrote a scathing dissent from the majority opinion.

It would be easy, and certainly principled, for me to argue May should be retained. I could mansplain the benefits of merit selection, the downsides of revenge.

But this issue isn’t about me and my vote.

If Iowa women want to kick May off the court after he joined a ruling taking away their bodily autonomy, making them second-class citizens and putting their lives in danger, I’m not going to scold them for doing so.

This is an extremely personal and painful issue for women. They’re in this spot because a bunch of clueless conservative men think they know what’s best. The last thing they want is more unsolicited advice from dude bros.

But, hey, can’t they just ask the Legislature to change the law or convince lawmakers to put a constitutional amendment up to a vote? What state is this again?

I doubt May will be booted. There’s no organized effort to oppose his retention. If he isn’t retained, the governor will just appoint another conservative justice.

But women can use their power to vote however they want, even if they “fail to achieve righteousness,” in the face of a Supreme Court that took away their rights.

(319) 398-8262; todd.dorman@thegazette.com