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Experts: Ousting no threat to judicial independence

BY HAYLEY BRUCE | NOVEMBER 04, 2010 7:20 AM

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Some experts say the unseating of three Iowa Supreme Court justices is more of a statement against gay rights than a threat to the judicial system.

"I think the frequency of this happening is, on the whole, relatively rare," said John Reed, a professor emeritus of law at the University of Michigan Law School. "And as tragic as it may be for the particular judges, it is something that is not the end of the judicial system, and we can move on."

For the first time in state history, Iowans voted not to retain three member of the state Supreme Court — Chief Justice Marsha Ternus and Justices David Baker and Michael Streit — the result of an unprecedented campaign to remove them based on their ruling that banning gay marriage was unconstitutional.

Nationwide, gay-rights activists said the move was a sobering blow.

"This spiteful campaign is a wake-up call to future voters who must resist attempts to politicize the courts," said Kevin Cathcart of Lambda Legal, a national gay-rights group that helped argue Iowa's gay-marriage case, Varnum v. Brien.

But for opponents of same-sex marriage, the ousting was a "historic and stunning" victory, said Brian Brown, the president of the National Organization for Marriage.

"What we have shown in this election is that support for gay marriage is a career-ending position for judges and legislators," he boasted.

In a joint statement, the three justices thanked Iowans who voted to retain them and urged them to continue supporting Iowa's merit-selection system for appointing judges.

"Ultimately, however, the preservation of our state's fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people," the statement said.

Iowa State Bar Association President Frank Carroll said the relative rarity of such an occurrence mitigates his concern; it would only pose a threat to the judicial system if it happened again.

"Certainly, if the next retention election has the same amount of political overtones and substantial campaign funds allocated to it, I would be very concerned about what that would do to the judicial system," he said.

Those campaigning to oust the judges spent an estimated $1 million.

The ousted justices will serve until Dec. 31.

An official selection process for replacements can't begin until election results become official near the end of November, said State Court Administrator David Boyd. A nominating commission will have 60 days to sort through applications, conduct interviews, and send nominees to the governor, who then has 30 days to make the appointments.

But some remained confident that Iowa's judicial system will remain uninfluenced.

"What I want Iowans to know is that our courtrooms need to be the safest place for parties to go to work out their differences and disputes," said Dan Moore, a co-chairman of the pro-retention group Fair Courts for Us. "They need to know courts will be fair and impartial and decisions won't be based on fear and popularity."

University of Iowa law Professor Todd Pettys said he doesn't think the threat of being ousted will affect the way Iowa judges do their jobs.

"I think if anything, these three justices will be regarded as examples of good judicial behavior," he said. "In other words, when they wrote this opinion, they knew it would be controversial, they knew they were coming up for election soon, they knew they could lose their jobs, and they did it anyway because they believe that is what the law required."

The Associated Press contributed to this article.


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