Sunday, October 17, 2010

Why Conservatives Support Judges Retention

October 17, 2010, 6:00 a.m.

Those Supporting Removal Are "Conservatives in Name Only" (CINO)
(bought to you by*)

Whether to retain three Iowa Supreme Court justices is one of the most important issues, or "races," on Iowans' November 2 ballot.

I've written about the issue in this morning's Gazette. The Press-Citizen editorialized about it yesterday and the Des Moines Register this morning. Judges here and elsewhere, lawyers, law school deans and professors, have weighed in on the subject, warning of the dangers of voting judges out of office because of disagreement about a single opinion.

Some, claiming to wear the cloak of conservatism, are urging Iowans to remove the three Iowa justices up for a retention vote. They are CINOs (conservatives in name only), attempting to mislead true conservatives as to the proper conservative vote in this "election."

My morning's op ed column is an effort to set the conservative record straight. It is below. Following it are the editorials in the Press-Citizen and Des Moines Regislter -- also taking the true conservative position, but not identifying it as such.

The Conservative Case for Judicial Retention
Nicholas Johnson
The Gazette
October 17, 2010, p. A17

Federalists, constitutional originalists, Tea Party members, and other true conservatives will vote to retain Iowa's Supreme Court justices.


Because they are steeped in American history.

They believe the founders' intentions are as valid today as they were more than 200 years ago. They honor and follow the Constitution our founders wrote and ratified.

Many conservatives are members of the Federalist Society -- a self-identified "group of conservatives and libertarians interested in the current state of the legal order." It is rational for them, when interpreting the Constitution, to look to The Federalist Papers, some 85 essays you may recall from high school civics.

During 1787 and 1788, Alexander Hamilton, James Madison and John Jay published those essays. They represent their effort to promote ratification of the U.S. Constitution -- a Constitution conservatives want to read literally. Today, when lawyers and judges try to do that, The Federalist Papers remain among the best evidence of the original intent of the drafters, and what our Constitution meant to them.

It fell to Alexander Hamilton to explain the court system in general and the rationale for the life tenure, retention and removal of judges in particular. His essay, "The Judiciary Department," is "Federalist No. 78."

There are those today who do not agree with conservative values.

There were "anti-Federalists" in Hamilton's time, too. Their essays make up "The Anti-Federalist Papers." One author, New York Judge Robert Yates, wrote under the name "Brutus." In the spring of 1788, he authored a series of essays ("Anti-Federalist" Nos. 78-84) in the New York Journal.

Liberal Yates recognized the need for judges' independence from the legislative and judicial branches. But he believed the Constitution provides too much independence, such as the life tenure for "good behavior" (Art. III, Sec. 1), and removal by impeachment only for "treason, bribery, or other high crimes and misdemeanors" (Art. II, Sec. 4).

Judges need to be responsible to "some superior power," he argued. This would not be a direct vote of the people. In his day even senators were not to be directly elected (Art. I, Sec. 3).

Instead, he proposed removal of judges be done by "some supreme . . . body of men, who depend upon the people for their places" - presumably a popularly elected body of some kind.

Federalist Hamilton responded to Yates in June 1788. He did not believe judges should be removed when voters disagree with individual opinions.

Judges need protection from legislators and the people.

Conservative Hamilton believed an independent judiciary is "one of the most valuable of the modern improvements in the practice of government ... [a] barrier to the encroachments and oppressions of the representative body ... the best expedient ... to secure a steady, upright, and impartial administration of the laws ... to keep the [legislature] within the limits [of the Constitution]." Independent judges can also restrain "serious oppressions of the minor party in the community ... an essential safeguard against the effects of occasional ill humors in the society ... as no man can be sure that he may not be tomorrow the victim of a spirit of injustice."

Conservatives know that Hamilton's principle, and rationale, for independent federal judges in 1788 is equally applicable for independent Iowa judges in 2010.

They agree with Hamilton that impeachment or a vote against "retention" of a judge should not turn on approval of the outcome from a judge's individual opinions.

Conservatives will vote to retain Iowa's judges because they are patriotic, honorable and consistent conservatives who love this country, respect its Constitution, and the wisdom of those who wrote, fought for and ratified it.

Nicholas Johnson, a former Federal Communications Commissioner, teaches at the University of Iowa College of Law.

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Protect the Independence of Iowa Judges
Iowa City Press-Citizen
October 16, 2010

There might be reasons other than the 2009 marriage equality ruling for individual Iowans to vote against retaining one or more of the Iowa Supreme Court justices up for retention votes this Nov. 2.

Chief Justice Marsha Ternus, for example, has presided over some very tough economic times, and many of the people affected directly by budget cuts in the Judicial Branch may disagree with the decisions she has made.

That might be one of the reasons why Ternus received only a 72 percent support ranking on the 2010 Judicial Plebiscite prepared by the Iowa Bar Association while Justice David Baker received 82.8 percent and Justice Michael Streit received 83.7 percent. (The supporting percentages for the six judges up for retention in the Sixth District, in contrast, range from Stephen Gerard with 81.4 percent to Sean McPartland with 96 percent.)

But in its regular survey of the lawyers who work with these judges, the Iowa Bar Association found that all three justices and all 71 judges standing for retention this year are "well qualified to remain as judges" in terms of their:

• Knowledge and application of the law.

• Perception of factual issues.

• Attentiveness to arguments and testimony.

• Temperament and demeanor.

• Quality of written opinions.

• Promptness of rulings and decisions.

• Avoidance of undue personal observations.

• Deciding cases based on applicable law and fact.

• Courtesy and patience.

• Treating people equally.

Those are the qualities that we prize in our judges and justices. And Iowa's nearly half-century old system of appointing judges based on merit has meant that very few judges -- only four in 48 years -- abuse their office and authority so egregiously that they need to be removed from office by the voters.

We want to ensure that Iowa keeps this system so our state judges know that they are free to render judgment according to past constitutional and case law and not have to worry about any political backlash if their well-reasoned judicial opinions prove unpopular.

If there is any problem with our current system, it's not that it removes too much politics from judicial appointments; it's that it ties the hands of judges from defending themselves against any organized efforts to unseat them. Especially when that negative information is all potential voters ever hear about the judges in question. Especially when that negative information is focused on a single ruling on an emotionally packed, controversial issue -- such as marriage equity.

Anyone interested in finding out more about an individual judge's record should check out:

• The survey on judges conducted by the Iowa State Bar Association (

• The voters' guide provided on the Iowa Judicial Branch website (

• The published decisions of the Iowa Supreme Court and Iowa Court of Appeals (

But we definitely don't want to see an overtly political campaign -- especially one that seems to be financed largely by out-of-state interests -- succeed in removing any judges or justices for no other reason than doing the difficult job they've been tasked to do.

Former U.S. Supreme Court Justice Sandra Day O'Connor has come to Iowa to explain the benefits of a merit system. And former Republican Gov. Robert Ray recently joined a campaign in favor of retaining all three Iowa Supreme Court justices.

This election, we likewise endorse the retention over every judge and justice on the ballot.

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This Vote Is About More Than Just 3 Judges
The Des Moines Register
October 17, 2010

Iowa's Nov. 2 general election ballot poses this question: "Shall the following judges be retained in office?" Then it lists the names of three justices on the seven-member Iowa Supreme Court.

This is by far the most important question in this year's election.

Voters will determine who will be governor for the next four years. They will determine who will serve in the Iowa Legislature and in Congress over the next several years. But, in this election, the voters will determine the fate of Iowa's judiciary for a much longer time. The question is whether Iowa's judges will remain independent or be subjected to the mutable forces of popular opinion.

A lavishly funded media campaign, complete with TV commercials and automated phone calls, has been waged to persuade Iowa voters to fire the three Iowa Supreme Court justices standing for retention.

The point is not that any of the three is incompetent or unworthy to serve on the bench because of personal or professional shortcomings. Rather, the campaign is the work of people who oppose the court's unanimous April 2009 decision that Iowa's law denying marriage to same-sex partners violated the Iowa Constitution.

A law that conflicts with the constitution cannot be enforced. That is the constitution's explicit command. Thus, the 1998 state law limiting marriage to a man and a woman could no longer be enforced. That meant the benefits of marriage granted by the state to opposite-sex couples must be extended to gay and lesbian couples - by the state, though not necessarily by churches.

Equal rights tradition

Some believe the ruling in Varnum v. Brien was the first step toward the end of Western civilization. In fact, the ruling is consistent with the Iowa Supreme Court's long record of recognizing equal rights of minority groups, often decades ahead of the U.S. Supreme Court.

This tradition dates back to Iowa territorial days, when the court declared in 1839 that a former Missouri slave living in Iowa could not be returned to slavery. When the court in 1868 mandated that a public school admit a black student. When the court in 1869 declared that women had a right to practice law in Iowa. When the court in 1873 declared that a black passenger had a right to the same steamboat accommodations as white passengers.

Those decisions were contrary to norms of their time. But equal rights guaranteed by the constitution cannot be restricted by contemporary social convention. Indeed, Varnum, like those earlier decisions, is the only reasonable reading of the plain language of the Iowa Bill of Rights, which says, "All men and women are, by nature, free and equal" and that "the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens."

Retention v. referendum

Some Iowans disagree with the court's decision on same-sex marriage, which is their right, but it would be wrong for voters to punish the judges for the ruling. That would transform the judicial process into a popular political forum.

Some contend it is perfectly proper for voters to register opposition to a single ruling by voting against judges in retention elections. But that is, in any case, an ineffective exercise. Even if all three of the justices are removed, that will not disturb the Varnum decision.

Some even suggest putting constitutional decisions themselves to a popular vote, in which case we would not need courts or judges at all. That would be absurd, of course, and contrary to the separation of powers plan of state government the framers of the Iowa Constitution designed.

Besides, it would contradict America's promise of liberty to conduct a popular referendum on fundamental constitutional principles, whether it be protecting the rights of citizens against government intrusion, criminal suspects against lawless police or minorities against the tyranny of the majority.

This retention election is about far more than just three judges. It is about the future of Iowa's system of selecting judges outside the realm of partisan politics. The people of this state eliminated partisan elections of judges 48 years ago, and they have been well served ever since by what is recognized as one of the best court systems in the nation. But for the first time in nearly half a century, a campaign is under way to return partisanship to the judicial process. Instead of voting on whether individual judges merit retention based on their fitness to serve, the anti-Varnum campaign is intended to legitimize the idea of putting the work of Iowa's courts to a popular vote.

An undesired outcome

If the voters of Iowa allow that practice to prevail, it will unleash a counterrevolution from those who support various court decisions, and Iowa will in effect return to partisan judicial elections. That is an outcome no one should relish. Many voices have been heard in this election season calling for elected leaders who will to restore and preserve our system of government and our constitution. This is a moment to do that very thing: Protect our system of government, and the checks and balances that rely on the independence of the courts.

The voters of Iowa should make that happen by voting "yes" on all three Iowa Supreme Court justices up for retention in this election. Indeed, unless Iowans know of a credible reason why any judge has proved unqualified to remain on the bench, they should also vote "yes" to retain all 74 appeals- and trial-court judges on the ballot across the state.

That is a vote to endorse not just those judges, but to endorse Iowa's system of justice.

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* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself.
-- Nicholas Johnson
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Anonymous said...

A poster, Gene130, is claiming in the DMR's forum for the editorial that you accused the DMR of plagiarism. You might want to answer that poster.

Joe Day said...

Read with interest your Liberal Apologee for Conservatism op ed. In the CR Gazette. It seemed like a bait and switch argument. That is the application of the Federalist Principles to the State Courts or the States, which If memory serves were protected as to their independent activity by the Constitution which was the ultimate Federalist working document, even though it included Slavery. The State of Iowa chose not to accept Hamilton’s life time appointment theory on judges but chose to have them stand for retention election every so many years. The argument that Conservatives would therefore always vote for a judge is the switch. The relevant point at hand, but one passed over by you Liberals, is that Chief Justice Turnes has declared the Court a Bureaucracy rather than an independent part of the governing body. Because our, shell switching, the hand is quicker than the eye, Governor decreed an across the Board cut in profligate State spending, our esteemed Chief Justice went along like a loyal bureaucrat, rather than telling him to stuff it, as the Michigan Supreme Ct. did to its Legislature under similar circumstances some years back. The State Courts are now in turmoil. Judges have furlough days so non criminal cases are continued as commerce slows due to inaccessibility to the Courts. Court Reporters are cut back so there is now recorded statements electronically by systems unable to discern who is talking over whom. All to the end that due process is lacking if you believe justice delayed is justice denied.

The foregoing having been said; I will cast a no vote for the retention of the Chief Justice in the hope it will bring to the Court someone with Balls ( ovaries) enough to defend the independence of the Courts as an equal arm of the government of the State of Iowa. Even the Founding Fathers of the Federal government were perplexed by the issue of the position of the courts (see Federalist 56) but could not come to a decision such as to articulate same in the Constitution, thereby leaving the issue open until Marbary vs Madison and Marshal’s decision which gave the Court its position while giving victory to Jefferson.

Having the judges being subject to a retention vote is not the most bassist of political exercises. It does give the people, who voted for the Constitutional Amendment which created same, a voice relative to the decisions of the Court. That is not all bad. Just because the Federalists could not come to agreement on same does not mean the Iowa Constitution is wrong or that a Conservative cannot vote no as to a judge without violating their fundamental principles.

If you please, we Conservatives will be the apologists for ourselves.

Joe Day