image The fact that the Iowa Poll found that the judicial retention issue is a toss-up among Iowa voters is unheard of.  That headline had to be painful for The Des Moines Register to write.

The retention battle over Iowa’s three Supreme Court justices is a tossup in the wake of last year’s ruling that allowed same-sex couples to marry, a new Iowa Poll shows.

Forty-four percent of Iowans who plan to cast a ballot in the retention election say they will vote “yes” to all three justices. Forty percent will vote to remove all three, and 16 percent say they want to retain some.
More than one-fourth of all likely voters are either undecided or plan to leave the retention boxes blank, according to the poll.

I never thought this issue was a gimme, and it seems as though some ground has been gained since this issue was polled last, in a poll commissioned by The Iowa Republican only 27% would vote against retention, but it also showed that when voters were told that these justices were responsible for gay marriage in Iowa that number jumped up to 47%.

Bob Vander Plaats and Iowa for Freedom seem to be making some inroads, and the pollster indicates that this poll doesn’t bode well for the Court.

“This is very tricky to interpret,” said J. Ann Selzer, the pollster for The Des Moines Register’s Iowa Poll. “I think it suggests that some justices, and perhaps all, will be removed. It lines up along Democrat and Republican lines pretty easily, except for low-income voters, which is typically a Democratic constituency.”

On the flipside, Iowans for Fair & Impartial Courts was started and their spokesperson Norman Kaut said:

Iowa’s courts are rated one of the most fair and impartial in the country.  This is the first time that Iowa has had special interests and major campaign donations involved in a judicial retention election.  This kind of campaign can push judges to consider the political implications of their rulings as opposed to limiting themselves to the application of the law to the facts of a case brought before them.  This, in turn, can subvert citizens’ belief in whether judges can be fair and impartial.

While their goal to educate voters on each judge up for retention is a worthy one, I believe that our current system is broken.  This is seen in the Register’s article about their poll finding:

Merit selection relies on a panel with seven members elected by lawyers, seven who are appointed by the governor and Senate-confirmed, and the most senior Iowa Supreme Court justice other than the chief. The commission screens candidates for the high court and sends three finalists to the governor, who appoints one to the bench (emphasis mine).

The first thing that needs to go is that the Iowa Bar Association should have zero involvement in the process, why they were allowed to have such influence is beyond me.  That will require a constitutional change.  Secondly the Governor should be able to appoint any judge he wishes, similar to what we see at the Federal level.  We don’t need a panel to vet, that is what the Senate is for.  The Senate who is directly accountable to the people, not a panel where half of the members are voted by members of the Iowa Bar.

I don’t want to go to direct elections for judges as I can see the pitfalls with that system, but to say that our system currently isn’t politicized is naive.  A retention vote isn’t the same as a direct election and it is extremely difficult to unseat a judge since it only happens every 10 years.  The retention vote was entrusted to Iowa’s voters, and I’d like to ask those against voting no on retention or what basis should we vote no, if not this?

I’ll agree that it is a merit based retention vote, and I am voting no based on their lack of merit – for starters demonstrating a lack of understanding of the separation of powers.  Retiring a few will send a message, and then perhaps we can get to work reforming our judiciary.  But first, let’s send Chief Justice Marsha Ternus and Justices David Baker and Michael Streit packing.

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