Christopher_RantsFormer Iowa Speaker of the House and Gubernatorial candidate Chris Rants wrote an op/ed for the Sioux City Journal on the topic of the Iowa Judicial Retention election.  It is entitled, “Outrage over the court’s gay marriage decision rings hollow.”  He is voting yes on retaining Iowa Supreme Court Justice David Wiggins and would like you to do the same.  His op/ed is a mixed bag as there are some points that I do agree with like the overarching point that the Legislature and Iowans are complicit in same sex marriage licenses being issued:

The blame lies with us. We didn’t put it in the Constitution despite ample opportunity. By “we” I mean all of us. There have been three elections since our first attempt and Iowans apparently have chosen to not elect a Legislature to do that.

Two years earlier Iowa’s flag desecration law was struck down as violating the due process clause of the U.S. Constitution. No one screamed “judicial activism.” There were no bus tours. The law was flawed. We knew it. So the Legislature wrote a new law to pass constitutional muster and still protect the flag. The system worked. The Legislature chose not to respond to the court ruling on gay marriage in a similar way. Who is to blame for that? We are. Not Justice Wiggins.

Rants is right that Iowans are to blame for not electing a more conservative Legislature.  We elect our leaders and so we then live with the consequences.  He is also right that the Legislature is to blame for sitting on it’s rear end and doing nothing after the ruling was issued.  They neglected their role.

I also appreciate that he and I share the same opinion of same-sex marriage.  We evidently disagree on the proper role of the Court and what judicial review really means.

But I’m not letting Justice Wiggins off the hook and here is where I disagree with Chris.  He makes the following points.

1. Conservatives knew DOMA was getting overturned, therefore it was a bad law and the Iowa Supreme Court was just doing its job.

What made it a bad law?  Because judicial activism takes place in other states means it is ok here as well?  Chuck Hurley and the Iowa Family Policy Center (precursor to The FAMiLY Leader) wanted to preempt that from happening.  That doesn’t mean the ruling was appropriate.

2. Governor Branstad appointed four of the justices who were on the Iowa Supreme Court.

So what?  With the Iowa Constitution enshrining the Missouri Plan he has to select from a pool of candidates forwarded to him by a judicial nominating commission stacked with members of the Iowa State Bar Association.

3.  We want the court to strike bad laws in order to protect us.

Yes we do, but we also want them interpreting the Constitution, not public opinion and popular culture.  Would a previous Court say in the 19th century conjure a “right” to marry a member of the same sex?  Not likely.  Has the Constitution changed?  No.  Not to say past courts have always got it right – Dred Scott for example.  Which means the Iowa Supreme Court can get it wrong as well.  Can the Legislature pass bad laws – absolutely.  The Iowa Supreme Court can also issue bad rulings.  We have a recourse with the Legislature does that – we can vote them out.  Our recourse for bad rulings is the judicial retention elections.  When are we supposed to exercise this right?  If there is never a reason to vote no on retention then why have a vote at all?  The Iowa Constitution provides us a check on the Iowa Supreme Court so we should use it when appropriate, not just when the legal and political establishment tells us to (which will be never).

Also as I wrote last week the problem isn’t just the ruling.  It was the order to issue same-sex marriage licenses.  The Legislature failed to act, but the Iowa Supreme Court failed to abide by the separation of powers.  The legislature writes the law, the executive branch enforces the law, and the courts interpret the law.  They give an opinion.  Chris Rants and I obviously have a disagreement on what judicial review means, and I’ve said numerous times it is a conversation worth having.

4.  We don’t want politics in our judicial system.

I don’t want direct elections of judges.  I think that has inherent problems as well, but as I pointed out earlier there is a problem with how judges are selected.  The simple fact is this – we already have politics being played in the system.  It is just happening behind closed doors with the judicial nomination committee.  Our selection process is flawed and it bypasses the people.  If a Senate confirmation is good enough at the federal level, why not for us?  At least then our elected representatives can vet the nominees and the Governor, who is also elected, can appoint whomever he or she chooses.  Right now the system is stacked by the Iowa State Bar Association (whose members are mostly liberal) and the committee is led by a senior member of the Iowa Supreme Court.  Status quo favors liberals.  The primary way that has to be fixed is with a constitutional amendment, but for now we have our judicial retention election.  It’s the constitutional process that we’ve been given.

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