In Tennessee, a reminder that judicial retention remains a target

In many ways, the judicial retention fight that gripped Iowa during the last two election cycles feels like a storm that's blown over.

It has been nearly four years since Iowa voters tossed out three justices of the Iowa Supreme Court. Evangelical conservatives campaigned hard to turn a routine retention vote into a witch hunt, determined to punish the justices for joining a unanimous ruling in favor of marriage equality in Iowa.

In a midterm election, carried by a Republican wave, it worked like a charm.

But then came 2012, when the same effort failed to oust Justice David Wiggins. The crusade to turn back same-sex marriage ran out of steam and the judge bus ran out of gas in a high-turnout presidential year.

So that's over, right? Retention goes back to being a back-ballot backwater.

Or maybe not. Consider Tennessee.

Tennessee judges, like those in Iowa, face periodic retention votes. As in Iowa, those votes used to be a routine exercise rarely making a ripple. But that changed dramatically in the weeks ahead of Thursday's Tennessee election.

Conservative groups from inside and outside Tennessee targeted three state Supreme Court justices appointed by a former Democratic governor. More than $1 million was poured into the battle by groups both assailing and defending the court. The justices themselves raised money and hit the campaign trail.

A PAC tied to the state's GOP lieutenant governor tossed in $425,000. Americans for Prosperity, a group aligned with the Koch brothers that's very familiar to any Iowans with TVs, also weighed in.

Marriage wasn't an issue. Instead, Tennessee judge hunters beat the Obamacare drum. The court didn't handle a case on the issue, but in Tennessee, justices appoint the attorney general. And that attorney general declined to join the national lawsuit against the health care law. Add 'soft” on crime, bad for business, and, of course, 'liberal,” and you've got yourself a smear campaign. Motivation? Knock off even one justice, and the court will have a Republican-appointed majority.

The good news is the plan failed miserably. All three justices were retained by a 57-43 margin. Tennessee voters saw an attempt to politicize their courts and rejected it. 'I hope that the hard work that we have put into this will discourage people from unfairly going after other justices,” Justice Cornelia Clark said, according to the New York Times.

So do I. So do all Iowas concerned about the prospects of our own retention votes again becoming partisan political circuses with all the dishonest trimmings.

Amd yet, Tennessee's saga also should serve as an early warning.

In 2016, Chief Justice Mark Cady and justices Brent Appel and Daryl Hecht face retention votes. Appel and Hecht were appointed to the court by former Democratic Gov. Tom Vilsack. Appel's wife, Staci Appel, is the Democratic candidates for Congress in Iowa's 3rd District.

Cady was appointed by Gov. Terry Branstad, but after authoring the court's landmark Varnum same-sex marriage ruling, he's hardly a GOP favorite.

These three justices, as I wrote last weekend, are part of a current court majority that regards Iowa's constitutional protections for civil rights and against unlawful searches and seizures as stronger and more robust than federal protections. At times, that view has put them sharply at odds with three justices appointed in 2011 by Branstad, Thomas Waterman, Edward Mansfield and Bruce Zagar.

No advanced rocketry degree is needed to see how some conservatives might like to toss Cady, Appel and Hecht, giving Branstad a chance to pick new justices. True, his picks would come from a judicial nominating commission. But judging by his 2011 appointments, it's possible they'd shift the court's philosophy.

By then, the Varnum ruling won't be much of a political hook. But it doesn't take much imagination to see how multiple groups with big donors and money to burn could twist any number of rulings into political weapons.

Take last month's 4-3 ruling that mandatory minimum prison sentences for minors are unconstitutional in Iowa. Cady wrote the majority opinion, with Waterman, Mansfield and Zagar dissenting. The ruling went further than any other state court in interpreting recent U.S. Supreme Court rulings chipping away at mandatory juvenile sentences. Judges in Iowa still can hand out harsh sentences to juveniles. The Legislature just can't make them mandatory. And yet, not everyone appreciated that nuance.

'This ruling perverts the constitution, puts Iowans in danger, and makes our state less safe,” said Rep. Chip Baltimore, R-Boone, chairman of the Judiciary Committee. Sounds like the makings of a swell TV ad.

I'm not saying it's going to happen. There also are plenty of reasons why it probably won't. As we saw in 2012, a broader presidential year electorate is less likely to go in for judge bashing. The idea of tossing justices in Iowa still is joined at the hip with opposition to marriage equality, which is now politically popular. After two bouts with retention fever, Iowans know what's at stake. The state's highest court has gone all out to revamp its public image, hearing cases around the state, etc.

And if it can't work in a state such as Tennessee, how can it work here?

So I think the message is vigilance. Don't think it will happen, but don't think that it can't happen. And if it does happen, like it did in Tennessee, call out the volunteers.

l Staff Columnist Todd Dorman appears Tuesdays, Thursdays and Sundays. Comments: (319) 398-8452; todd.dorman@thegazette.com.