If there was ever an argument against popular election of justices, it's underway in a state that does the sensible thing and allows judges to be appointed by merit.
Back in April 2009, the Iowa Supreme Court unanimously threw out the state's gay marriage ban as unconstitutional. Now three of the judges who made that ruling are up for retention--and there's a massive effort underway to throw them out.
The embattled justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — have decided not to campaign. Two were initially appointed by former Gov. Terry Branstad, the Republican nominee for governor this year, who has declined to weigh in on the effort. One was appointed by Gov. Chet Culver, a Democrat who opposes the campaign.
This is despite the fact the American Family Association has thrown its weight into the effort. No small consideration, since there's a strong tinge of social conservatism among Iowa Repubs (as we found out when Mike Huckabee won the 2008 caucuses there).
Those who want the judges out admit they know this won't change the same-sex marriage ruling--they just want to send a message.
Brian S. Brown, executive director of the National Organization for Marriage, which has spent $230,000 on television ads criticizing the Iowa judges, said he understood that removing the three judges would not change the same-sex marriage ruling. (It was a unanimous ruling by the state’s seven justices.) But Mr. Brown said he hoped the judges’ ouster would help prevent similar rulings elsewhere by making judges around the nation aware that their jobs are on the line.
"It sends a powerful message," he said, "That if justices go outside the bounds of their oaths, if the justices go outside the bounds of the U.S. and state constitutions they’re going to be held accountable."
Bob Vander Plaats (who else?) is leading the ouster campaign. He claims there's no other way to keep judges in check. Um, Bob? As much as we of the center-left rage at the decisions of the likes of Scalia, Thomas and Alito, the whole point is that the judiciary is supposed to be independent. Case in point--the Arthur Andersen ruling.
Even some Republicans think this is going too far.
Supporters of the judges, including most of the legal community here as well as a number of prominent Republicans, describe the campaign as punitive and suggested that if voters want to abolish same-sex marriage they should call a constitutional convention, a matter that is also on the ballot, or pressure the legislature to amend the constitution.
Makes you wonder if the ouster proponents know the tide is moving against them. According to the Des Moines Register, a constitutional amendment must be passed by two consecutive legislative sessions before going to a referendum. The earliest that could happen would be 2012.
This intimidation effort could possibly succeed since, as I mentioned earlier, a third of Iowa voters usually don't vote in judicial elections. The good news is a similar effort in San Diego earlier this year failed miserably once word got out about what's going on. And it's more important than ever to turn this one back since the targeted judges aren't campaigning.