The question of judicial retention has been a huge weight on my mind as the election draws nearer. I do not write this entry as a soon-to-be attorney, but simply as a citizen of the state of Iowa who is tired of the manipulation of the masses by outside sources. National attention has been focused on Iowa ever since the decision was released for Varnum v. Brien. This widespread interest has certainly peaked in the months leading up to the November 2nd vote on whether to retain three of the Iowa Supreme Court Justices. In case you’re not aware, Chief Justice Ternus and Justices Streit and Baker were part of the unanimous decision holding that the state statute that defined marriage as only between a man and a woman was in violation of the Iowa Constitution. Bob Vander Plaats and his organization, Iowa for Freedom, are telling people that the solution to what they view as a problem is to unseat these Justices as some sort of punishment. This idea or cause or whatever they would like to call it is absurd.
I am not going to cite the Federalist Papers, quote our Founding Fathers, or make lofty intellectual points. I am going to simply make a common sense argument that amounts to this: voter, educate thyself. Do not permit people from outside our state whose main goal is to send a message to judges who are simply doing the job for which they were appointed to manipulate you. You should be skeptical of any information you receive (including my post – that is exactly what I mean), and do a thorough job of educating yourself in order to make an informed decision as to whether or not you check yes or no November 2nd.
Ask yourself whether you know the answers to the following questions: Who is Bob Vander Plaats? What is Iowa for Freedom? Where does their funding come from? What is their real purpose? Do you know those answers? Are you aware the Bob Vander Plaats has attempted to run for Governor of Iowa and lost at the primary level twice and voluntarily become candidate for Lieutenant Governor once? His last campaign focused a great deal on issuing an executive order to stop clerks from issuing marriage licenses to same-sex couples (which, by the way, is the incorrect mechanism for ‘reversing’ or ‘overruling’ an Iowa Supreme Court decision). Iowa for Freedom was founded by Vander Plaats after he ran a losing primary campaign to “stop judicial tyranny,” “defend marriage,” and “protect freedom.” This organization accuses the Iowa Supreme Court of ignoring the Iowa Constitution and “the will of the people.” If you go to the organization’s website and click the Contact link, you will find that they are “a project of AFA Action, Inc.” Checks can be made payable directly to that organization. If you know where I am going with this, you should next be asking yourself who AFA Action is. They are an arm of the American Family Association, which is an extremist organization founded in 1977 in Mississippi that uses the Bible as a weapon against all they disagree with. They spout hateful rhetoric all over their website, and are most commonly known for things like boycotting Disney because they had some secret “gay agenda,” and blaming gays for Biblical plagues (i.e. crop failure).
The “Vote No” campaign is a classic red herring. Iowa for Freedom wants Iowa voters to unseat three Iowa Supreme Court Justices because according to their argument, this is the correct means to “check and balance” the courts. They are showing you their right hand, when really you need to pay attention to what their left hand is doing. The group argues not that the system is broken, but that by issuing a single opinion on a controversial issue, these Justices crossed some invisible line and therefore should be unseated. The question of the validity of a single case should not be the question at hand. However, it is and impossible issue to ignore in the face of this manipulative campaign. Anyone who argues to the contrary is simply missing the point. Iowa voters are being barraged with misleading information from an organization whose purpose is far removed from instituting justice under the Iowa Constitution.
Iowa for Freedom accuses the Justices of legislating from the bench or somehow doing something that took away the legislature’s power. Professor and former Dean of Drake Law School David Walker responded to this assertion quite well in a recent bipartisan forum on the issue. He said “nowhere in our Constitution is a court given the power to abstain from a case properly brought before it.” Varnum was properly raised by individuals who felt that the Iowa marriage statute (the act of the Iowa Legislature) violated their constitutional rights. The Court did not have the ability to just avoid this case simply because it was difficult or controversial. The Justices of the Supreme Court took an oath to uphold the Iowa Constitution, which contains an equal protection clause (Art. I, Sec. VI). This equal protection clause requires that those similarly situated must be treated equally. Therefore, the statute not treating those similarly situated equally is contrary to the Iowa Constitution. I say this at the risk of oversimplifying the issue, but I want you to go read the Iowa Constitution (link). I want you to go read the Varnum v. Brien decision at 763 N.W.2d 862 (Iowa 2009) (link). Take a look at the nonpartisan Iowans for Fair and Impartial Courts website so you have a better understanding of how merit selection works.
I will be up front and tell you that I agree with the Court’s decision in Varnum. But that is not relevant to what I am arguing here. The question should not be whether you agree with a particular decision the Court reached, but instead whether these Justices are doing the job for which they were appointed. That is why you should read the Constitution, and Varnum, which will show you that the decision was absolutely within the power of the Court and in accordance with the Constitution. That is why you should look at the Iowa State Bar Association’s 2010 Judicial Plebiscite, which will show you that in an actual survey where participants answered only once, over 70% of attorneys stated they would retain Chief Justice Ternus, and over 80% would retain Justices Streit and Baker.
Voting “no” when asked if these Justices should be retained is not going to magically reverse the Varnum decision. It just does not work that way. I do not for a second believe that there should be a Constitutional Convention on this issue, but that is your means of redress if you feel so inclined. Contact your legislators, or vote for a Constitutional Convention on November 2nd. Do not buy in to the arguments that are truly meant to politicize the judicial system and to “send a message” to other judges in other states and scare them into doing what is popular, not right under the Constitution. Do not let out of state money, politics, and hateful rhetoric fool you into taking an action that has nothing to do with the Iowa Constitution.