image Predictably, The Des Moines Register wrote an editorial yesterday entitled, “public opinion can’t decide court cases” after news that there will be an organized campaign to oust the Supreme Court justices up for retention this year.   While that is true that public opinion should not decide court cases, the public can and should hold a judiciary accountable for bad rulings and when they overstep their Constitutional authority.  The Des Moines Register editorial board said:

Voters in November will vote on trial and appeals court judges who are up for retention. This is an opportunity for voters to remove a judge for cause – when he or she has clearly been shown to be unfit to continue serving on the bench. Unfortunately, some see this year’s retention elections as a public referendum on the Iowa Supreme Court’s unanimous 2009 ruling that Iowa’s law limiting marriage to a man and a woman violated the Iowa Constitution.

I think the Register’s editorial board’s position on retention votes is narrow.  The Iowa Constitution already provides for the removal of judges “for cause.”  Article III, Section 19 and 20 gives the Iowa Legislature the power of impeachment for “any misdemeanor or malfeasance in office.”  (One could argue that the Iowa Supreme Court’s decision on DOMA demonstrates malfeasance since it was an act in violation of the public trust.)

Also, Article V, Section 19 says that not only does the Legislature have this ability, but the Supreme Court has this ability to remove judges for good cause.  Obviously they can’t remove themselves, but if they are “considered unfit” the Legislature can remove them.  When it comes to retention votes, all the Iowa Constitution says is:

Members of all courts shall have such tenure in office as may be fixed by law, but terms of supreme court judges shall be not less than eight years and terms of district court judges shall be not less than six years. Judges shall serve for one year after appointment and until the first day of January following the next judicial election after the expiration of such year. They shall at such judicial election stand for retention in office on a separate ballot which shall submit the question of whether such judge shall be retained in office for the tenure prescribed for such office and when such tenure is a term of years, on their request, they shall, at the judicial election next before the end of each term, stand again for retention on such ballot. Present supreme court and district court judges, at the expiration of their respective terms, may be retained in office in like manner for the tenure prescribed for such office. The general assembly shall prescribe the time for holding judicial elections., (Article V, Section 17).

It says nothing for removal for cause (though we could argue a no vote is a vote for removal for cause, but that’s a whole different post).  This was implemented in 1962 simply to replace judicial elections with an appointment process.  So votes are not for election with opponents running against each other, but for retention whether or not their constituency want to retain them or not.  So to say this is just “an opportunity for voters to remove a judge for cause – when he or she has clearly been shown to be unfit to continue serving on the bench” is disingenuous.  No such boundary has been defined in the Iowa Code or Constitution.

The editorial board also said:

Retention elections are an important part of Iowa’s judicial-selection process. They assure the citizens of Iowa that if every other tool for removing unworthy judges fails, the voters can do the job. That rarely happens, however, which is the way it should work. Iowa’s merit-selection process does a good job of picking qualified judges in the first place, and the courts have administrative procedures to deal with judges who misbehave.

It would be a perversion of the retention-election process, however, to use it to fire judges for rulings voters find objectionable. Take that wrongheaded idea far enough, and we might just as well have a public referendum on every case that goes to court. And, while we’re at it, throw out the constitutional protections for individual rights.  Indeed, the job of judge is to make decisions, which in almost every case will displease one side or the other. We do not want judges taking public-opinion polls before ruling.

So we should just leave it up to the court to police themselves?  Again, the Constitution does not state that a retention vote is solely for misbehavior.  It doesn’t state that we are the measure of last resort.   As far as saying, “we might just as well have a public referendum on every case that goes to court.”  Please.  Many cases that the Iowa Supreme Court hears does not impact our society like this one does.

The last time I checked we don’t have a judicial oligarchy.  These types of decisions should be decided by “We the People” or by representatives elected by the people.

I find it ironic that the Register states we should “throw out the constitutional protections for individual rights.”  Like the right to bear arms or right to property?

No, we see those rights trampled on by courts all of the time, instead we see “group rights become elevated.”  An new rights are created.  Please show me where there is a “right to marry” in our Constitution?  For that matter a “woman’s right to choose whether or not to kill her baby”?

But I digress.

The Register says “Iowa’s judicial-selection process is one of the best in the country.”  It’s not.  The judicial selection process is flawed as the Iowa Bar Association has more sway over how judges are selected than you do.   All elected officials serve at the pleasure of the people, judges should be no different.  The retention vote is just one tool that “We the People” can use to hold Iowa’s judiciary in check.  Ultimately the reason The Des Moines Register wrote this editorial is because they don’t trust you the voter with this constitutional process, but they don’t trust you on voting on the definition of  marriage either so we shouldn’t be surprised.

2 comments
  1. You seem to forget that “we the people” adopted a constitution that provides for three separate and equal brances of government. “We the people” saw the wisdom of a system where decisions about fundamental rights, especially those that involve minorities or unpopular ideas, are not left to the way popular opinion is blowing any given day but are entrusted to courts bound by that constitution. Your beef appears to be with the constitution that “we the people” of Iowa adopted many years ago which guarantees equal treatment of all people. Apparently you’re smart enough to recognize that it’s better strategy to complain about courts than to propose a constitutional amendment that writes discrimination into the Iowa Constitution.

    As for me, I’m proud of Iowa and the constitution that we adopted as our fundamental law so long ago. “Our liberties we prize and our rights we will maintain.”

  2. Todd,

    Obviously, if you think that same-sex marriage is a right that the founders of Iowa wanted protected when they drafted the Iowa Constitution, you have no grasp of history. If you think judges can change the meaning of the text (rather than the people through the amendment process) then you really do believe in judicial oligarchy. A three-branch system only works if judges actually follow the constitution under which they govern, rather than invent new rights and deny old ones, and give the state powers that it does not have. Judges have the power to effectively amend the constitution at any time by simply altering its meaning. Surely you become annoyed at what liberals often call “conservative judicial activism” too? Or you just trust the wisdom of judges (be they conservative or liberal) above all?

    “We the people” did adopt a Constitution, and we reserve the right to amend it as we see fit, be it in the form of a response to a court ruling, or to pre-empt such a ruling. If a measure defining marriage as man-woman was on the ballot in Iowa, it would probably pass, unless you are willing to suggest that Iowa is appreciably more liberal on the question than states like ME, CA, OR, MI, or WI, which all passed similar measures by margins ranging from 52% to 59%. The reason such a measure is not yet on the ballot is not that “the people” do not want to vote on it; it is that the Iowa Legislature will not permit the people to do so.

    Obviously, the whole debate comes down to the meaning of the text. I will simply say that if you allow judges the power to create rights, you also give them the power to take rights away.

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