Retention vote was abused
November 4, 2010
The results of the election Tuesday were either disappointing or exciting for you depending on your party affiliation and political ideas. But no matter your politics or persuasion, the decision of Iowans not to retain three Supreme Court justices is upsetting and wrong.
The retention vote is usually overlooked by major media outlets because every judge in Iowa has been retained since the year 1962. However, this year the attention of voters and media alike was sparked. Why?
Since the 2009 decision in the case Varnum v. Brien which struck down the state legislature statute forbidding gay and lesbian couples from receiving the state-conferred benefits of marriage, former Republican gubernatorial candidate and Iowa for Freedom chairman Bob Vander Plaats has been up in arms.
The extremely controversial campaign to vote “No” on judicial retention cost $1 million. Funds came from anti-gay organizations such as Mississippi-based American Family Association, Washington, D.C.-based Family Research Council, Arizona-based Alliance Defense Fund, Georgia-based Faith & Freedom Coalition and New Jersey-based National Organization for Marriage. Notably, none of these are directly affected by decisions made in Iowa courts.
This ridiculous campaign was not at all about the character or overall quality of the judges’ performance, which is the purpose of the periodic state-wide vote on judicial retention. Instead it was an attack on the decision made in 2009 extending the Equal Protection Clause of Iowa’s Constitution to gay and lesbian couples. Instead of targeting the thought wrongful decision with a constitutional amendment or an overruling decision, the opponents make an unprecedented attack on the judges themselves.
In a late-October forum, former Iowa Supreme court associate justice, Mark McCormick — not on the ballot for retention — and Vander Plaats, the spokesperson for the “No” campaign, sparred heatedly while discussing the issue of this year’s judicial retention.
A constantly voiced complaint from Vander Plaats’ organization, Iowa for Freedom, was that the Iowa Supreme Court is currently an activist court legislating from the bench. In response, McCormick whipped back, “An activist court is a court that makes the decision you don’t agree with.” The court was simply performing its duty: interpreting the Constitution much as the U.S. Supreme Court did when, in Brown v. Board of Education, it declared school segregation to be in violation of the Equal Protection Clause.
McCormick also referenced Alexander Hamilton’s Federalist 78, which calls for an independent judiciary. Whether or not you agree with a decision made by the court, the use of the retention vote to personally attack three competent judges is violating this judicial pillar.
But, you may ask, how do we know they are competent? In a recently conducted questionnaire published by the Iowa State Bar Association, lawyers statewide regularly practicing before these judges were asked to rate the judges on 10 performance factors. The conclusions were very favorable for all judges. The lawyers were also asked if they were for or against each judge’s retention. Keep in mind that half of the lawyers voting would have inevitably been on the losing side in at least one decision made by the judges they were rating. More than 80 percent of the more than 1,000 lawyers polled responded favorable to the retention of their local and state-level judges on the ballot.
McCormick passionately defending the judges on the ballot, “The appropriate way, if one is unhappy about a constitutional decision made by the court, is not to try to oust the judges who made the decision but to try to change the constitution or try to persuade a subsequent court to overrule the decision that the court made,” he said. “But the campaign here is an effort to intimidate judges, not only in Iowa but everywhere, not to carry out their constitutional responsibilities but to defer to the mob or what is perceived to be a majority view and not to make unpopular decisions.”
The Bill of Rights is not a democratic idea; it applies to everyone all the time, and it is there to protect us when democracy runs amuck. An independent judiciary must uphold the Bill of Rights at all costs. It must not be subject to the whims of the majority.
Protecting minorities — racial, religious, economic, sexual, etc. — is what makes the United States great. We must defend minorities against the tyranny of the majority. And Tuesday, the majority spoke, infringing their values and beliefs on the minority. I, for one, am raising my voice in protest and I hope you will join me.