Chipping Away at the Bench: How We Failed the Judiciary in Iowa

Article excerpt

VOTER ANGER took, a new form as the results of Iowa's November 2010 midterm elections were revealed. In a real-life twist that would make any screenwriter envious, three of the seven Iowa Supreme Court justices--who in 2009 unanimously upheld a ruling legalizing same-sex marriage in the state--were voted off the bench. More than 60 percent of Iowans who voted filled in the little oval on their ballots that indicated "no" as the answer whether to retain the judicial services of Chief Justice Marsha Ternus and Justices David Baker and Michael Streit.

The morning after the midterm elections there was considerable shock--not only in Iowa but across the country--at the outcome of the retention vote. After all, this was the first time since Iowa's judicial merit and retention system was adopted in 1962 that a justice had actually been voted off the bench. And it was the active and well-financed campaign to remove the justices from the bench that seemed to be the specific focus of everyone's attention. The Des Moines Register estimated that mostly out-of-state organizations raised more than $650,000 and spent much of it on TV and radio ads. The justices were targeted for their decision on same-sex marriage, but voters were also warned about possible future decisions that would strip voters' choices regarding family and individual freedoms, such as those related to owning a gun. In contrast, the mostly instate supporters of the justices raised about $200,000. The justices, originally appointed to the bench, did not campaign for themselves.

For years the religious right has complained about judicial activism, whereby the decisions of state and federal jurists thwart the will of the people (read: Christian people). So they became activists themselves--judiciary activists working to get rid of Iowa's Supreme Court justices over a disagreement regarding their same-sex marriage ruling. The out-of-state organizations contributing the most money to the ouster campaign were the National Organization for Marriage and the American Family Association. That's not to say there was a lack of local support, as Rep. Steve King (R-IA) of the fifth district toured the state urging voters to turn out and vote no on retention.

The head of the ouster campaign was failed Republican gubernatorial candidate Bob Vander Plaats. "I think [the ouster] will send a message across the country that the power resides with the people," Vander Plaats said. "It's we the people, not we the courts."

Aside from a basic misunderstanding of how a balanced democratic government works, Vander Plaats does make a valid point about power residing with the people. Iowa was a test case in many ways for a favorable same-sex marriage ruling in 2009. The state has now become a favorable example of using an election to oust judges that rule against the majority--or at least a majority who get out and vote. …