Saturday, October 27, 2012

Judicial Retention and Iowa Justice David Wiggins

October 27, 2012, 11:00a.m.

Balancing Democracy and Judicial Independence

There are many issues and arguments regarding the voters' retention (or not) of Iowa Supreme Court Justice David Wiggins. Most of his opponents simply disagree with what they view as the policy espoused in an Iowa Supreme Court opinion (which he joined, but did not write) that found an Iowa legislative enactment banning gay marriage to be a violation of the Iowa Constitution.

Other issues that might be raised, but are seldom explored, involve the underlying wisdom (or not) of Iowa's "Missouri Plan" for selecting, and reviewing the performance of, state judges, and the Iowa Bar's evaluation of Justice Wiggins (certainly "passing marks," but lower than some others).

But a new, young colleague of mine, Paul Gowder, and I have tried to address a narrower issue, one we believe lies at the heart of legitimate public discourse. Our column appears in this morning's [Oct. 27] in Gazette: Nicholas Johnson and Paul Gowder, "Independent Judiciary," The Gazette, October 27, 2012, p. A5, and is reprinted in its entirety at the bottom of this blog entry.

In order to isolate, highlight and clarify the issue we wish to address, so as not to confuse and intermingle it with other issues, we implicitly assume for purposes of our analysis that (a) the Supreme Court opinion in question, Varnum v. Brien, was "correctly decided" from a legal, judicial, lawyers' or law professors' perspective, (b) that voters should vote to retain Justice Wiggins on the court, based on the enumerated standards for evaluating a judge's performance, but that (c) there remains a legitimate issue regarding the appropriate balance between (1) judicial independence and (2) popular control of governmental institutions.

The column was run in parallel with another which joined issue with regard to the outcome of that balance. Donald P. Racheter, "People Have Judicial Control," The Gazette, October 27, 2012, p. A5.

Racheter is president of the conservative think tank, Public Interest Institute, in Mt. Pleasant. Although he specifically advocates the propriety of voting against the retention of Wiggins because he signed on to the court's unanimous Varnum opinion, his column goes beyond that. He believes it is not only appropriate, but well within the purpose of the Missouri Plan, for voters to oust judges whose opinions differ from their own. Paul Gowder and I disagree.

The link above is deliberately provided so that you can read his entire column if you wish. Meanwhile, here are some excerpts that I believe fairly put his position:
As someone who for many years taught a college class entitled Judicial Politics, I would like to try to correct those who have been emoting of late about how the courts and judges are supposedly different from executives and legislators — that they are somehow “non-political.” Any institution composed of humans . . . is political . . .. Political reform efforts [regarding courts] make it easier to divert power and control from ordinary folks to elites such as lawyers . . ..

The Missouri Plan . . . is supposed to ensure popular control of judges [and] allow them to run on their record, and for the people to render a verdict on that record with their ballots. It is rare for a judge running for retention to lose, but . . . when it happened to Chief Justice Marsha Ternus and two of her colleagues here in Iowa in 2010 over the “gay-marriage” issue, it means the system is working as intended. . . . [M]embers of the “mainstream media” . . . are either being disingenuous or mendacious when they allege that it is “wrong” for citizens to vote against a judge they dislike . . .. Others who claim that voters should only vote against judges who are senile, abusive or caught taking bribes are similarly in error . . .. [T]hose Iowans who disagree with the Varnum v. Brien decision and choose to vote “no” on Justice David Wiggins . . . are fulfilling the “good government reform” role designated for them when the Missouri Plan was adopted in our state constitution.
Gowder and I do not argue that our federal and state (Missouri Plan) judiciary operate flawlessly, any more than any other institution does -- hospitals, major corporations, think tanks, legislatures, foundations, newspapers, universities, or police departments. Nor do we deny that there is some role for democracy. Where we differ with Racheter is when he argues the Missouri Plan was intended, and should be conducted, as a means of "popular control of judges" -- as he interprets "control." Indeed, we believe the opposite; that constitutions, and the judiciary to interpret them, were specifically established precisely to be a check against the mob rule that would result from a "popular control of judges" that includes the removal from office of those whose judicial opinions were disliked by a majority of the people.

We believe the people's remedies for judges' statutory interpretations the majority rejects are to be found in legislatures, not courts. If the majority disagrees with the court's interpretation of a constitutional provision, the public's remedy lies in a constitutional amendment.

Here, then, is our column from this morning's Gazette:

"Independent Judiciary,"
Nicholas Johnson and Paul Gowder
The Gazette, October 27, 2012, p. A5

Iowa’s Justice David Wiggins, on November’s ballot, says, “I hope Iowa Supreme Court justices never have to raise money from political donors to ask for your vote.”

Whether the public should be voting for judges is, like many other legal issues, a matter of balancing.

“Democracy” suggests popular control of the language in constitutions and laws, which we have. On the other hand, America’s founders believed the legislative and executive branches need the check of a truly independent, non-political third branch. Popular participation in picking federal judges was limited to the people electing a president who would make, and senators who would consent to, judicial appointments. Once sworn in, judges could decide cases on the merits, with the protection of lifetime appointments.

Iowa strikes this political vs. independence balance with a merit system for nominating potential judges, their ultimate selection by the governor, and the absence of conventional election campaigns. However, one year after an Iowa Supreme Court justice’s first appointment, and every eight-year term thereafter, Iowans can vote whether to retain them.

The relevant factors in retention elections should be such things as the judges’ integrity, professional competence, judicial temperament, experience and service. Before the election, the Iowa Bar researches and publishes its evaluation of judges regarding these and other factors.

Two years ago, with three justices on the ballot, few if any citizens had complaints about these relevant qualities of the Iowa justices. The Bar approved all of them.

But some Iowans rejected a particular Iowa Supreme Court opinion, Varnum v. Brien. This well-researched, reasoned and written opinion was supported by every justice. The case required the court to address civil rights provisions of the Iowa Constitution as applied to an Iowa law banning same-sex marriage. The court concluded that religious organizations are free to define marriage however they choose. The State of Iowa, however, said the court, is restrained by its own Constitution from prohibiting same-sex marriage.

It was certainly a significant decision. But as a matter of Iowa constitutional interpretation, and legal opinion drafting, the opinion was in no way a radical departure from the mainstream of American law.

Why is the political decision to remove judges because of a single opinion we dislike not even in the best, selfish interests of offended citizens? Because ultimately we all benefit from a windbreaker in the storms brought on by political climate change. Our nation’s founders realized that 225 years ago, and it is no less true today.

And if we passionately disagree with courts’ decisions? We can elect governors to appoint different judges. If we don’t like a court’s interpretation of a statute, we can ask the legislature to change the law. If it’s a constitutional provision, we can organize to amend it.

Independent judges, uninfluenced by campaign contributions, and supported by the public, enable each of us to live under a “rule of law” rather than arbitrary and unchecked political decisions. If we protect them now, they’ll be able to protect us in the future.
Nicholas Johnson and Paul Gowder are faculty members at the University of Iowa College of Law. Comments: or

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