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.
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Nicholas Johnson and Paul Gowder are faculty members at the University of Iowa College of Law. Comments: mailbox@nicholasjohnson.org or paul-gowder@uiowa.edu

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Iowa's Civil Rights Leadership

April 3, 2009, 10:00 a.m.

Iowa's Supreme Court Says State Constitution Upholds Same Sex Marriage;
Forbids Legislative Effort to Ban
(brought to you by FromDC2Iowa.blogspot.com*)
See, "L'Iowa devient le troisième Etat américain à légaliser le mariage homosexuel," Le Monde, April 3, 2009; Monica Davey and Liz Robbins, "Iowa Court Says Gay Marriage Ban Is Unconstitutional," New York Times, April 3, 2009; Register Staff Reports, "Unanimous ruling: Iowa marriage no longer limited to one man, one woman," Des Moines Register, April 3, 2009.

And here is the Court's full opinion in Varnum v. Brien, April 3, 2009.

Today my home state contributes one more "Iowa brag" to be used when curious coastal residents ask where I'm living these days and are told "Iowa." After explaining to them that Idaho, Ohio and Iowa are really three states, not one, their response is sometimes, "But Iowa, Nick? Why would you want to live in Iowa?"

I'm reluctant to wax too effusive. After all, one of the answers to their question is the fact that Iowa's relatively low population density makes for much less stressful daily living. (The state's three million residents are fewer than the number who crowd many of their coastal cities.)

There are lots of answers. The number of lists of best places to live -- for the young, for entrepreneurs, for the elderly, for schools -- often put Iowa cities at or near the top. Iowa's scientific research and academic leaders include an impressive list from George Washington Carver to James Van Allen (for whom the Van Allen radiation belts are named). The nation's largest teaching hospital, in Iowa City, has some of the top rated departments in the country.

Iowa City is also one of three "cities of literature" worldwide designated by the United Nations (along with Edinburgh and Melbourne).

Indeed, there are lots of reasons why those who confuse Iowa with Idaho, and treat both states as nothing more than "fly over country" are missing out on the gem that is Iowa.

But one of the greatest irritants for me is when I have the sense that a coastal resident's preconceived notion of the state's residents is of a group of uneducated, conservative, rednecks who would vote "Larry the Cable Guy" into the governor's office if only he'd run.

Iowa has a proud history of civil rights leadership.

After all, it was little more than a year ago that this overwhelmingly white state put the lie to the notion that an African-American would not stand a chance as a presidential candidate. Thanks to Iowa that African-American is now in the White House and the world has a new view of Americans in general.

And today Iowa becomes one of three states (along with Connecticut and Massachusetts) to recognize gay marriage. I don't want to spoil today by getting into a rehash of the merits of the issue -- though I agree with the court's opinion both as a matter of state constitutional interpretation and as a matter of public policy. (See Nicholas Johnson, "Church, State and Gay Marriage," September 1, 2007.) Frankly, as I listened to the oral arguments before the Iowa Supreme Court in the Varnum case I didn't think the gay marriage opponents did a very good job of marshaling an argument for their position.

But you don't even have to agree with the court's outcome to recognize that it says something about the state that is of economic as well as civil rights significance. Richard Florida talks about the contribution of the "creative class" to any state's economic development. And among the qualities of life, culture, and society sought by those who have the most to contribute to entrepreneurial and other economic growth -- along with quality schools, theater, entertainment venues, parks and trails -- are the range of diversity and the sense of an open, progressive, welcoming society, of which this decision is but one more bit of very solid evidence (e.g., "[the cities] faring the best right now are not only major education centers; they also are regional health-care hubs that draw people into the city and benefit from a stable, educated, highly skilled work force. . . . Economists credit a highly skilled work force for the resilience of college towns. Edward Glaeser, an economics professor at Harvard University, has demonstrated that as the share of the adult population with college degrees in a city increases by 10%, wages correspondingly rise by about 7.8%." Kelly Evans, "Why College Towns Are Looking Smart," Wall Street Journal, March 24, 2009.).

The point is that these judgments by today's Iowans are not flukes.

Why do I head this blog entry "Iowa's Civil Rights Leadership"?

Let me answer that by quoting from Justice Cady's well-crafted opinion, which is far more precisely documented than I could create off the top of my head:

In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. 1 Morris at 9. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows to the concept of segregation long before the United States Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Admission of Women to the Bar, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois’ decision to deny women admission to the practice of law, see Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139, 21 L. Ed. 442, 445 (1873), and twenty-five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood, 154 U.S. 116, 118, 14 S. Ct. 1082, 1083, 38 L. Ed. 929, 930 (1894). In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the “absolute equality of all” persons before the law as “the very foundation principle of our government.” See Coger, 37 Iowa at 153.

Iowa has had many proud days. This is just one more.
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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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Gannett, Gays and Alberta

December 8, 2008, 6:40 a.m., plus other changes throughout the day; a revision of and numerous updates to the entry of December 7, 2008, 12:10 p.m.

Gannett's Disastrous Decisions
(A Blog Entry of FromDC2Iowa.blogspot.com)

A CEO's gotta do what a CEO's gotta do.

But there's a right way and a wrong way to go about it. Given the choice between the two Gannett has chosen the wrong way.

These are tough times for the newspaper industry -- along with everybody else.

"Venerable newspaper chain Knight Ridder was swallowed in June 2006 by rival chain McClatchy Co., which has since watched its stock price lose 90 percent of its value. Over the same period, shares of The New York Times Co. are down more than 60 percent, while shares of The Washington Post Co. are down more than 40 percent." So the Washington Post reported in the body of its story about what appears to be the Tribune's impending bankruptcy. Frank Ahrens, "Debt-Ridden Tribune Co. Considers Bankruptcy," Washington Post, December 8, 2008, p. A1. ("The Chicago-based company owns a coast-to-coast empire with television stations and newspapers in most of the nation's largest cities. Its holdings include the Los Angeles Times; cable television super-station WGN in Chicago; the Baltimore Sun; and WDCW-50 in Washington, the CW affiliate. The company even owns the Chicago Cubs.")

Gannett, which owns the Des Moines Register and Iowa City Press-Citizen newspapers in Iowa as a part of its media empire, has not been immune from Wall Street's pressure for newspapers to show ever-increasing profits in a downward-spiraling economy, with rapidly declining advertising revenues, along with declining readership, and the lack of a successful business model for making sufficient profit from the online editions that make the companies' multi-million-dollar content available for free. Gannett's third quarter earnings per share were down from $1.01 in 2007 to $0.69 this year, although operating revenues for the quarter only declined from $1.8 to $1.64 billion. Broadcasting revenues were actually up 3.9% for the quarter (from $189.5 million in 2007 to $197 million this year).

Gannett's response has been to apply an across-the-board 10% layoff policy to over 80 newspapers including our Des Moines Register and Iowa City Press-Citizen. OK, I understand why some cost cutting might be preferable to Tribune's choice for how to deal with $13 billion in debt. And I understand that you can't really sell off printing presses and stay in the newspaper business -- at least not without a business model for economic survival online. So you have to let some folks go. But who you pick, and how you go about the layoffs, not only tells volumes about your character, but also about your business smarts.

Craig A. Dubow, Chairman, President and CEO of Gannett, who even looks a little bit like Robert Morse (see "How to Succeed" video, below), has been chair for seven years. You will probably not be surprised to discover that while Mr. Dubow has been laying off workers by the thousands this Holiday Season, he has also seen to it that he will get the lion's share of some $79 million worth of golden parachutes when the day comes that he gets laid off. (See former Gannett editor Jim Hopkins' "Gannett blog, "Golden Parachutes? The Answer is $79 Million", July 20, 2008, and "Bulletin: Gannett laying off 10% of newspaper staff; Dickey warns in memo: 'fiscal crisis is deepening,'" October 28, 2008.)

The corporation's first mistake was its choice of who does, and does not, get laid off -- as the Press-Citizen's Bob Patton illustrates:

[Credit: The Press-Citizen's nationally recognized, distinguished graphics artist and editorial cartoonist Bob Patton, December 2, 2008.]

Judging by the absence of a Patton editorial cartoon in yesterday's [Saturday, November 6] paper, I fear that he may be among the 11 said to have been laid off at the Press-Citizen.

Hopefully not, because if so it's just one more classic example of big business shooting itself in the foot, getting rid of irreplaceable top quality professionals in times of economic downturn while hanging on to easily replaceable mediocre executives -- like Detroit's shrinking "Big Three" have done, bringing about their own demise.


[Credit: "How to Succeed in Business Without Really Trying."]

Dubow has lived inside America's premier example of the commercial riches created by graphics in the marketplace -- television. He started his career by selling TV commercials and worked his way up through the broadcast side of Gannett. He is now the chair of a corporation that made itself famous as well as rich by creating the first newspaper that epitomizes color and graphics surrounding paragraph-long stories (and is purchased from a box that looks like a television set) -- USA Today. You would think that Dubow, more than most corporate executives, would see the necessity of retaining the corporation's best graphics and editorial cartoon professionals.

Editorial cartoonists and graphics designers are on the front lines of the newspaper's hope for winning back readers. They should be the last to go in a newspaper's restructuring.

What scares me is that the precipitous, forceful, crude and rude removal from the Des Moines Register of beloved Iowa icon and 25-year Gannett employee Brian Duffy is now a matter of public record as a result of the KCCI-TV report last evening [December 6] and gives further reason to believe Patton may be gone as well. I understand that corporate executives are sometimes as boorish and cruel as they apparently were in this case in man handling Duffy (it's often just in their nature and training), but I've never been able to understand how they can be so stupid. ("[Duffy] has been working as a cartoonist and illustrator for more than 30 years. He has received two Best of Gannett awards, two World Hunger Media awards and was a finalist for the prestigious John Fischetti Award for editorial cartooning. His two books are A Decade of Duffy and More of Duffy, published in 1995. His cartoons are syndicated by King Features Syndicate.")

And be sure to read the comments, and the original post, on Gannett Blog, "Des Moines: Laid-off Cartoonist's Exit a 'Stunner,'" December 7, 2008. The Iowa Independent now has a story, Jason Hancock, "Duffy Speaks Out on Register Layoffs," Iowa Independent, December 8, 2008, 11:27 a.m.

Here's video of the WHO-TV interview with Duffy December 6:


If Patton is in fact also gone it is a great tragedy for this community, Iowa, Gannett and the newspaper industry -- though hopefully, given his rich talents and job opportunity elsewhere, not for him.

Gay Marriage

The Iowa Supreme Court will be hearing the gay marriage case, Varnum v. Brien, next Tuesday, December 9, at 10:00 a.m. -- a matter I wrote about here a couple weeks ago. Nicholas Johnson, "Gay and Lesbian Marriage" in "Gays, God, and Plaques," November 24, 2008.

The case takes on national significance because Iowa stands on the threshold of becoming only the fourth state in the United States to recognize gay marriage, and the first in the Midwest.

Recognizing this, the Iowa Supreme Court, to its credit, is making special arrangements to handle this national interest. General Information about the oral argument, including how you can get access on your laptop to live streaming of the lawyers' presentations, is available on the Iowa Supreme Court's special site.

Obviously Americans' attitudes and arguments about gay marriage are shaped by many factors and come from many directions. But among those approaches are the ones of relevance to the Court: the legal arguments. If you're curious as to what they are, the Court has made available for you the legal briefs filed with the Court by the parties on both sides.

I began my commentary two weeks ago,

That gay and lesbian couples should be permitted to enjoy the status of "marriage" has always seemed such a no-brainer to me -- whether as a matter of constitutional law, public and social policy, basic fairness, or even economic policy -- that I've not bothered to comment about it.

Now that the Iowa Supreme Court case is putting the issue back in the local news -- including Editorial, "A Case of Civil Rights," The Gazette, November 23, 2008, p. A9, and Jeff Charis Carlson, "Don't Listen to Straw Men," Iowa City Press-Citizen, November 23, 2008, p. A9 -- it's probably appropriate to remove any possible ambiguity as to my position.

Nicholas Johnson, "Gay and Lesbian Marriage" in "Gays, God, and Plaques," November 24, 2008.

And see also the Register's page one story this morning, Grant Schulte, "Gay marriage goes before Iowa high court this week," Des Moines Register, December 7, 2008.

Of course, these issues don't always go the way of the GLBT community, as they recently discovered in California with Proposition 8. But, being Californians how did they respond? Why with a musical, of course:

See more Jack Black videos at Funny or Die

K-12 Education

Well, Linda Lantor Fandel and the Register have done it again.

It was only a couple of weeks ago I was writing in praise of the paper's presentation of Finland's educational system, Linda Lantor Fandel, "An academic star: Finland's focus on education translates into top achievement," Des Moines Register, November 23, 2008, p. OP1 -- with links to the 15 or more additional stories on the subject in the special section. Nicholas Johnson, "Satisfactions of Lively Learning," November 23, 2008, a blog entry about what we can learn K-12 education generally from "alternative education" and showcasing Mary Vasey's Gazette column, "Why Involve At-Risk Students With Theater?" The Gazette, November 23, 2008, p. A10.

This time the paper looks north to Alberta. Linda Lantor Fandel, "Alberta Keeps Pushing to Improve Its Schools; Standard Curriculum, Development of Teachers Drive Excellence," Des Moines Register, December 7, 2008, Special Section, pp. OP1-8, including Editorial, "Muster Will to Reform Education." (There are many other articles and data in the special section which can be found, along with prior education coverage by the Register, at its overview "World-Class Schools for Iowa?" site.)

These have been wonderful contributions to Iowa's efforts to recapture its once proud status as one of America's best K-12 systems -- if only school board members, superintendents and teachers will read and act on them, or better yet write the equivalent for themselves.

What do I mean by that? As I have often said, "With 15,000 school districts in the United States there is virtually no challenge confronting any one of them that has not presented itself to another district, which identified, addressed, solved and then wrote it up and put it on the Internet for others to use." In addition, of course, are the reports and research from the U.S. Department of Education, Presidential task forces and commissions, Congressional committees, national foundations and research centers, the NEA, and 50 state departments of education, as well as the education "trade press."

We don't need to hire consultants, go to winter conferences in sunny climes, or even read the Register to find out how to improve Iowa's educational system. It's all out there, available to all. Three hours on the Internet by an educator who is proficient with Google will produce more ideas than three days at a conference or with a consultant.

But given the results the Register reports from the global "Program for International Student Assessment" we need to look to other countries as well -- as the Register has been encouraging us to do.

In 2003 Finland scored first in science and reading, and second in math. Canada scored 3rd in science and reading and 7th in math. The U.S.? We were 29th in science, 18th in reading, and 35th in math.

When I was writing bi-weekly columns on K-12 education as a school board member I would occasionally write about what was going on in other countries, e.g. Bulgaria ("Much is Accomplished with Little," Iowa City Press-Citizen, September 28, 1999), Germany ("A Good Model for Education," Iowa City Press-Citizen, February 29, 2000, p. 11A), Switzerland ("Swiss Education Runs On Time," Iowa City Press-Citizen, June 5, 2001, p. 9A).

The Register has provided Iowa educators, students, parents, legislators, local leaders, and the business community that depends on an educated work force a running start at educational improvement with its continual drumbeat about education -- including these two special sections on Finland and Alberta. But with all the Register does, even if we read it, that will no more solve our problems than buying a diet book at the bookstore will result in our sheding pounds.

Now it's up to us to act, in the realization that the rich rewards from improvement make "the pain of change" seem petty by comparison.
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