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 FromDC2Iowa.blogspot.com*)
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.

Why?

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.

# # #
Protect the Independence of Iowa Judges
Editorial
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 (www.iowabar.org).

• The voters' guide provided on the Iowa Judicial Branch website (www.iowacourts.gov/Public_Information/About_Judges/Retention).

• The published decisions of the Iowa Supreme Court and Iowa Court of Appeals (www.iowacourts.gov).

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.

# # #
This Vote Is About More Than Just 3 Judges
Editorial
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.

# # #_______________

* 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
# # #

Blogging About Blogging

September 29, 2008, 9:45 a.m.

"Censorship" and Anonymous Electronic Speech
The Daily Iowan has, without explanation, removed comments, and shut down the ability of readers to add more, to a couple of stories about the UI's President Sally Mason. Until the paper explains what happened and why it is premature to assume it was either a "computer error" or an outrageous bit of state censorship.

[See Amanda McClure, "No Raise for Mason," The Daily Iowan, September 26, 2008, and Amanda McClure, "Mason Apologizes to Regents," The Daily Iowan, September 26, 2008, and the six comments complaining about those deletions posted between September 26 11:34 a.m. and September 28 7:41 a.m. to Lauren Sieben, "Regent: No 2nd Thoughts," The Daily Iowan, September 26, 2008.]

But that's not the only bit of blogging news.

Some of the best literary as well as policy writing on the Press-Citizen's editorial pages occurs when the paper's own editorial page editor, Jeff Charis-Carlson, writes and publishes a piece that is entirely his own.

But it's a significant commentary about the role of blogs and other forms of electronic speech these days that someone who has such exclusive access to his own editorial page in a newspaper also chooses to communicate by way of a blog.

It's especially appropriate that he would do so in this case.

He's blogging about blogging.

Specifically, he's addressing some of today's hot issues surrounding the propriety of mainstream media permitting on their online Web sites anonymous comments from readers about stories in the paper's hard-copy edition. These comments can sometimes include those that are little more than name calling and mean-spirited allegations with little or no factual basis, coming from those able to hide their lack of decency and manners behind their anonymity.

Charis-Carlson sides with the practice of anonymous speech utilized by three of our nation's founding fathers, Alexander Hamilton, James Madison, and John Jay. Jeff Charis-Carlson, "Anonymous Online Comments: Good, Bad or Just Ugly?", September 24, 2008, 4:24 p.m. He begins:

I was asked to take part in an Iowa City Public Library panel discussion on Online News and Message Boards. I had prepared five-minutes worth of introductory remarks, but the organizers launched right into questions. So, I thought I'd share these remarks with the people who could appreciate them most -- anyone reading and commenting on www.press-citizen.com:

"Introduction for the Intellectual Freedom Festival: Online News and Message Boards."

Last week, I attended the annual convention of the National Conference of Editorial Writers — this year in Little Rock, Ark.

As you can imagine, our focus was primarily on trying to justify our own profession at a time when anyone with an Internet connection can set himself or herself up as a purveyor of opinion.

Not only did we discuss the issues arising from our own anonymity — writing the nameless consensus opinions of our editorial boards — but we had many discussions on the degree to which allowing anonymous online responses to news and opinion articles either:

a) Represents a revolution in citizen journalism (which is good),

b) Provides a crass way to drive up online traffic statistics at the expense of reasoned, vetted, well-edited news and opinion (which is bad), or

c) Does a lot of both (which is just ugly).

The three witnesses called by Charis-Carlson are, as you'll recall the authors of the famous and influential "Federalist Papers," writings encouraging the ratification of the Constitution while impressing the authors' interpretations of it upon the public and judges who followed. They chose to write anonymously, using the name, "Publius." (Originally published as newspaper articles, October 1787-August 1788, they were ultimately published in book form as The Federalist (J. and A. McLean, 1788).)

The courts have tended to look favorably upon anonymous speech as well -- and to some extent for the same reasons Charis-Carlson identifies: "at times, cyber-anonymity is the only way to allow contrary opinions to be raised without retaliation against those who dare speak out against majority opinion. At times it is the means by which a voice crying in the wilderness can find an audience." (See, e.g., "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Talley v. California, 362 U.S. 60 (1960).)

I guess, while I would not differ with the basic doctrine approving anonymous speech (with such a distinguished historical foundation), I do think it is not compromised by modifying it in the specific context of readers' comments on a newspaper-owned Web site.

As it was put in Justice Jackson's separate opinion in Kovacs v. Cooper, 336 U.S. 77, 97 (1949): "The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself."

The Court has made clear that the only people who have meaningful First Amendment rights in our monopoly-media-dominated society are those who own them. And those are only rights as against government action. Editors and journalists can be fired by owners; they certainly don't have any First Amendment rights as against the owners. Even though a paper has a local monopoly, and has posted rates for the sale of advertising, it can refuse to publish an ad just because it doesn't like the content. It can attack someone in its pages and refuse to sell or give them the space to reply. (See, e.g., Miami Herald v. Tornillo, 418 U.S. 241 (1974), overturning as unconstitutional a Florida statute providing for precisely that right.) Clearly, the public doesn't have any First Amendment right as against the owners. (All are actions that would in most contexts be violations of the First Amendment if done by governments -- a consideration that may impact on the propriety of The Daily Iowan's recent actions.)

As the Court argued in upholding the Fairness Doctrine (now repealed) in Red Lion v. FCC, 395 U.S. 367 (1969), the Congress/FCC could have decided to require broadcast licensees to share frequencies (that is, one licensee might broadcast Sunday through Wednesday, another Thursday through Saturday -- both in the same town and on the same frequency). Therefore the much lesser Fairness Doctrine requirement was clearly permissible (i.e., the sole licensee had to (a) deal with local controversial issues of his/her choice, and (b) present a range of views, also of their choice, in doing so).

Similarly, if a privately owned newspaper can refuse to carry any letters to the editor, and refuse to permit any comments from readers about its stories on its Web page, it would seem to me perfectly permissible for it to allow only the comments of those willing to identify themselves.

Most papers will go to some considerable lengths before publishing a letter to the editor to confirm that the letter submitted to the paper has been written and sent by the person indicated as the author. Of course, once published the author's name is known. And at least two of the standards the paper will use in deciding which letters to publish, presumably, are (1) the extent to which the letter makes a worthwhile substantive contribution to the community dialog, and (2) the civility of the language employed.

By what rationale does a paper apply such relatively rigid, responsible, professional standards to the letters to the editor in its hard copy edition, and virtually none to what amount to the "e-letters to the editor" in its online edition?

If (1) there is, in fact, a problem of outrageously offensive comments about stories being placed on newspapers' Web pages (what Charis-Carlson calls "grossly inappropriate commentary"), and if (2) there is reason to believe that requiring those placing comments to identify themselves might reduce or eliminate the problem, why would it be so wrong to require those commenting to identify themselves by their actual names?

On the other hand -- like President Truman's request for "a one-handed economist," would you really want me to be a one-handed blogger? -- the printing press has been around a lot longer than the World Wide Web. (China had movable porcelain type in 1040; Korea the first metal movable type in 1230. Johannes Gutenberg was a Johannes-come-lately, waiting around in Mainz until 1439.) The Congress and the courts have taken a somewhat lenient free market approach to the Internet's wild west excesses during its baby years. Section 230 of the Communications Decency Act of 1996 gives those who provide an opportunity for online comments from others something of a base on balls when it comes to what would otherwise be the provider's liability for third-party content.

Many papers and other services have at least some mechanism for readers to flag comments of others they believe to be over the top. As Charis-Carlson notes, "in the past year we’ve [the Press-Citizen] had to kick off dozens of participants for grossly inappropriate commentary."

But that sort of thing can raise other problems -- as anyone can quickly discover when their e-mail provider gets put on an industry-wide "do not receive" list, friends no longer get their emails, and there is little to nothing they can do about it. (It's kind of similar to the "Red Channels" list of tainted actors and writers during the "anti-communist" years of Senator Joseph McCarthy.)

Privately-owned papers are not restrained by the First Amendment. They can, legally, be selective about which readers' ideas will be permitted on their Web sites, and which will be removed. When the government opens up what is called a "public forum" it cannot make such content-based distinctions between who can, and cannot, use the facility. But even though not legally required to do so, the underlying principles suggest a similar standard would also make sense for privately owned newspapers. If you're going to open up your Web site to reader comments, a community dialog, doesn't it make more sense to permit all of them?

That's the way this blog of mine has been operated. The only comments I've ever removed are those that are clearly advertising for goods or services (primarily from gambling casinos; comments appended to blog entries dealing with gambling). As long as I get my say in the blog, I think readers are entitled to their say in the comments -- though I would tend to be more tolerant of comments criticizing me than comments bordering on defamation, or invasions of privacy, regarding others, were those situations to arise.

It helps, in trying to understand both the First Amendment and the utility of considering its underlying foundations' applicability to private media as well, to lay any proposal involving speech alongside the First Amendment's purposes to see how it fares.

1. "Marketplace of ideas." It is believed that "truth" is more likely to emerge from a public dialog in which all persons and ideas can be presented and weighed.

2. "Self-governing." If a self-governing people are to have a prayer at making democracy work they must at least have access to the maximum possible range of information and opinion on public matters (whether they take advantage of that access is, of course, another matter).

3. "Checking value." The press is sometimes called "the Fourth Estate" because it is both recognized in our Bill of Rights as an important component of government and one that is totally outside of government. As every school child knows, the legislative, executive and judicial branches provide a check on each other. But the media can serve as an additional "check" as well, not only on abuses by government, but abuses by other powerful institutions as well (this week think "Wall Street").

4. "Safety valve." There is a theory/assertion that by permitting the frustrated and angry an opportunity to speak we can reduce somewhat their alternative response: violent actions of one kind or another perpetrated against the community and the elements within it they perceive to be the cause of their misery.

5. "Self-actualization." Humans belong to, as a general semanticist has observed, "the only species able to talk itself into difficulties that would otherwise not exist." We are bested by the other species -- especially squirrels -- in many ways (speed and athletic prowess; sight and hearing; survival skills; the bats' radar; etc.). Our superiority is in our ability to create and use language. Speaking and writing -- and the analytical thought that, hopefully, precedes it -- contribute to our growth as individuals, our self-actualization, with regard to the only quality that sets us apart.

To the extent those "First Amendment values" resonate with you, most if not all would seem to be served by readers' comments on newspapers' Web pages.

As Charis-Carlson concludes, permitting them is: "an act of optimism as well as commercial exploitation, but we’re betting its potential benefits of increasing conversation will outweigh the current hazards of having those conversations end in a flame out."

# # #