Last

month, Bob Vander Plaats — three-time candidate for governor of

Iowa and recent advocate against the retention of three Iowa

Supreme Court judges who voted with their peers in the <span style=

“mso-bidi-font-style: normal;”>Varnum v. Brien decision to

allow same-sex marriage — stated that the remaining judges should

use the annual Condition of the Judiciary address to

resign. 

Vander Plaats maintains that the people of

Iowa, if all the judges had been up for their retention votes,

would have removed all seven.<span style=

“mso-spacerun: yes;”>  According to <span style=

“mso-bidi-font-style: normal;”>T<span style=

“mso-bidi-font-style: normal;”>he Iowa Independent, Vander

Plaats said, “The 540,000 who voted ‘no’ would have voted ‘no’ on

all seven. All seven would

have been off.” 

Such an assertion smacks of outrageous

speculation. Only

individual voters are capable of saying how their votes would have

been cast on individual issues.<span style=

“mso-spacerun: yes;”> Vander Plaats is in no way entitled to

such a presumption. 

On the Dec. 31 airing of  “Iowa Press,” Vander

Plaats made his call for the judges to resign.<span style=

“mso-spacerun: yes;”> Apparently it would be a sign of

leadership after their colleagues were removed from office, and an

orderly transition would ensue.<span style=

“mso-spacerun: yes;”> He said the judges should say, “We

should have an orderly transition and let [the people of Iowa] know

we’re going to step down.”<span style=

“mso-spacerun: yes;”> 

But how can a transition encased in

controversy and constitutional misunderstandings be orderly if the

Supreme Court is not staffed by any judges with previous experience

on that Court? In

“Federalist No.

37,” James Madison wrote, “Stability, on the contrary,

requires that the hands in which power is lodged should continue

for a length of time the same.”<span style=

“mso-spacerun: yes;”> Order and stability require

that change is not hasty, and that guidance can be offered from

more experienced colleagues.<span style=

“mso-spacerun: yes;”> 

Vander Plaats also said, of the condition of

the judiciary, that it “is not very strong.<span style=

“mso-spacerun: yes;”> You saw that on Nov. 2.<span style=

“mso-spacerun: yes;”> The people have lost complete

confidence in them.” In the

Quad-City Times,

he said “it would be ‘disingenuous’ for the justices to ignore the

will of the people by staying on until they face retention votes in

future years.” 

But the judicial branch of government should

not be exposed to the passions of the people.<span style=

“mso-spacerun: yes;”> Judges do not answer political

questions. Judges make

rulings as matters of law.<span style=

“mso-spacerun: yes;”> There is a correct answer to the

question at hand, and its validity is not negotiable and is not

open to debate; except under the very most compelling of

circumstances, where precedent must be overturned.<span style=

“mso-spacerun: yes;”> 

Courts must cast their rulings according to

the outcome of careful, considered analysis regarding

constitutionality. Where

there is ambiguity, courts ought to increase the private rights —

rights that have no bearing on other people, such as marital

decisions — of the people under their jurisdiction.<span style=

“mso-spacerun: yes;”> Governments, including their judicial

departments, ought always to err on the side of preserving rights,

rather than exercising powers not possessed with

certainty. 

Madison also stated in “<span style=

“mso-bidi-font-style: normal;”>Federalist No. 37” that

“the genius of republican liberty seems

to demand on one side, not only that all power should be derived

from the people, but that those entrusted with it should be kept in

independence on the people.”<span style=

“mso-spacerun: yes;”> Our republican system requires not

only that our Constitution can be changed.<span style=

“mso-spacerun: yes;”> It is also necessary to insulate

officeholders from irrational passions and over-frequent

elections. 

Alexander Hamilton wrote in “<span style=

“mso-bidi-font-style: normal;”>Federalist No. 78,” The duty

of the judges is to be “the bulwarks of a limited Constitution

against legislative encroachments.”<span style=

“mso-spacerun: yes;”> That duty is assisted through “the

permanent tenure of judicial offices,” not through the exposure of

such offices to popular passions.<span style=

“mso-spacerun: yes;”> Hamilton wrote, “Nothing will

contribute so much as [permanent tenure will] to that independent

spirit in the judges which must be essential to the faithful

performance of so arduous a duty.”<span style=

“mso-spacerun: yes;”> 

Hamilton, like other early American

politicians distrustful of  “the people,” voiced another reason for

judicial independence: “the Constitution and the rights of

individuals” must also be guarded “from the effects of those ill

humors which the arts of designing men … sometimes disseminate

among the people themselves.”<span style=

“mso-spacerun: yes;”> Those “arts of designing men, have a

tendency … to occasion dangerous innovations in the government,

and serious oppressions of the minor party in the

community.” 

The surviving judges of the Iowa Supreme Court

ought not resign in the face of this populist opposition to one

ruling. Judiciaries should

not be subject and should not act according to the will of the

people. The constituencies of the judges are the Constitution and

the freedoms and liberties it secures.<span style=

“mso-spacerun: yes;”>