No room for popularity contest in the courts

In some ways, everything's already been said about voters' decision Tuesday not to retain three Iowa Supreme Court justices.

And despite the flood of words, your feelings about the decision to fire Chief Justice Marsha Ternus and Justices David Baker and Michael Streit probably haven't much changed since you started reading about the campaign to boot them from the bench.

It was a victory or a tragedy, a needed check on judicial power or a troubling politicization of our judicial branch, and once again it's put us in the national headlines as a bellwether of things to come.

Washington Post writer Ruth Marcus called the vote “one of Tuesday's most disturbing election results,” the product of what our own Todd Dorman called a “cynical, dishonest, scorched-earth campaign waged against the justices.”

“I think it will send a message across the country that the power resides with the people,” Bob Vander Plaats said. “It's we the people, not we the courts.”

But that's not exactly true. We the people have had the power to determine judicial retention since 1962. It took a thwarted gubernatorial candidate with one hand on a stash of out-of-state dosh to harness that power.

And if the people wanted to honestly exercise their power, they would have voted for or against the justices on their merits - not as some kind of misplaced referendum on same-sex marriage.

The vote not to retain the justices won't change that unanimous ruling at all - or the legal reasoning behind it.

Experts are wringing their hands about what, if any, effect Tuesday's vote will have on state courts in Iowa and beyond.

Retention votes aren't uncommon - does that mean judges across the country now rule with one eye on the polls?

Probably not.

Because for all the hot air some people like to blow about what Tuesday's vote means for their cause (see above), anyone who's ever been in a courtroom knows

the bench isn't exactly a popularity contest in the first place. If you're looking for Miss Congeniality, try the legislative branch.

University of Iowa law professor Todd Pettys said it best in an interview with the Wall Street Journal's Law Blog:

“Look, each of these justices knew they were coming up for a retention election last year, when they issued the Varnum opinion,” he said. “Nevertheless, they ruled the way they did.”

They did it because it was their job - to see through smoke and mirrors. That's how the courts will, and should, continue.

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jennifer.hemmingsen@sourcemedia.net