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Supreme Court justices involved in gay marriage ruling not retained

BY HAYLEY BRUCE | NOVEMBER 03, 2010 7:30 AM

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Three Iowa Supreme Court justices are out.

In a historic Tuesday vote, whose margin grew wider as the night wore on, a little more than half of Iowa citizens voted not to retain all three justices.

David Baker, Michael Streit, and Marsha Ternus were all ousted by about 54 percent of the votes.
“The electorate just poured sugar down the gas tank of the judicial system, and it’s going to take a whole lot of work to keep there from being permanent damage,” said University of Iowa law Professor John Whiston.

While such a vote isn’t unheard of, he said, it isn’t common.

“It’s just extremely disappointing,” said 6th District Chief Judge Patrick Grady.

The unprecedented campaign to remove the justices, appointed by both Republican and Democratic governors, began after a decision legalizing gay marriage in the state.

“I’m very disappointed on a personal level,” Grady said. “Judge Baker was a longtime friend of mine, and he was a very successful lawyer and a capable judge.”

And experts and supporters of the justices say that’s exactly the problem.

The politicization of the process may not only deter judges from acting independently, but also from applying for the position in the first place.

“The concern is although the system will put in place qualified people, that it will become a disincentive for the most talented and most qualified to be in the judiciary for fear they will lose their job if they make a decision that is legally correct but publicly unpopular,” said UI law student Alexander Abrams, who has participated in forums encouraging retention.

Still, Iowa’s merit selection and retention system differs from the process in many other states, where judges are elected. And it will allow qualified judges to replace these three, he said.

In Johnson County, the public voted overwhelmingly — though by a smaller margin than most judicial-retention elections — to retain the judges, with an average of 68 percent voting to retain.

Whiston’s main concern is that such a move will be the beginning of campaigning for a justice’s seat, which could lead to judges thinking of their decisions in political, rather than legal, terms.

The national impact isn’t immediately clear, Grady said, because Iowa’s system differs from many other states, where justices are elected.

This vote could become a constant issue, or Tuesday could prove a historical oddity, Grady added.

Tuesday’s vote won’t reverse the gay-marriage decision. That could only happen if a new panel of judges heard a similar case and reversed the former court’s ruling, said UI political-science Associate Professor Tim Hagle.


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