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Iowa’s judicial future not apocalyptic

BY DI EDITORIAL BOARD | FEBRUARY 07, 2011 7:10 AM

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Following November’s election, Iowans’ decision not to retain three of the seven state Supreme Court justices because of a controversial ruling continues to raise questions about the future of the state’s nomination and retention processes.

The recent launch of anti-retention organizer Bob Vander Plaats’ “Capturing Momentum Tour” is evidence that the results of the 2010 election hold grave implications indeed. But a Feb. 3 panel discussion at the University of Iowa College of Law, “The New Politics of Iowa Judicial Retention Elections,” bolstered our particular optimism: The current method of selecting justices is not fundamentally or immediately subject to political machination.

Since 1962, Iowa has been only one of a great majority of states that use the merit system — electing justices to the high court based on their qualifications as weighed by a committee of nonpartisan and governor-selected members — but the question remains: Can merit become a proxy for a political persuasion when handing down rulings?

The answer is yes — possibly. But that doesn’t require a complete repudiation of the current selection mechanism. The injection of politics or campaigning into the state Supreme Court and the concern about “activist judges” are all potential side effects of politicians’ attempting to fix a system that is not necessarily broken.

Panel member Seth Andersen, the executive director of the American Justice Society, defended the merit system as the fairest and most broadly supported way to appoint judges. He said that instead of knowingly seeking to change or formulate laws, “[j]ustices are different – they do a very different job from legislators and politicians.”

The 2010 ousting of justices, apparently over a single ruling, signified a historical anomaly, according to panelists.

Only 4 percentage points separated the anti- from pro-retention voters; panel member Michael Streit, one justice removed by the vote, expressed his hope that this was an isolated incident. “For 27 years, I had the privilege to work for the people of Iowa … I wish they had seen through the phony campaign.”

A basic tenet of the merit system is to protect the state Constitution’s interpretation from sullying by popular opinion, and Vander Plaats’ campaigning has not yet corrupted this principle. The 2010 ousting was a miscarriage of democratic justice but not the death knell of judicial impartiality.

Fifty-five percent of Iowans expressed their opposition to potentially impeaching the remaining state Supreme Court justices after that idea was floated in the Iowa House last month. Gov. Terry Branstad agrees, saying in January that he does not support efforts to impeach the justices. Furthermore, Branstad’s commitment to avoid using Varnum v. Brien as a political “litmus test” proves that justice selection is not yet grounded in issue politics.

Indisputably, Iowans must move past the “slippery slope” arguments and into the problem-solving sphere; while our system aims at the ideal of impartial law, there are many improvements that can be made.

Streit warned that if money — either from outside interests or individually garnered because of a need to campaign for future retention — was allowed to permeate the judicial branch, politics would indeed play a role in judges’ decisions. Even more concerning, the Iowa Code does not require justices to recuse themselves from cases where personal monetary interests are at stake.

Andersen noted that one resounding improvement to Iowa’s retention routine would be the addition of “official judicial reviews,” survey results from those working around the justices made public prior to elections.

These are only a few suggestions, and they rely on citizens’ attempts to engage with all branches of politics. Our judicial structure may not be perfect, but it can be improved by cultivating a factually informed viewpoint on the role of justices and the selection thereof. Let’s continue our legacy as the state with the least-amended Constitution and keep rightfully appointed and responsible justices on the bench.

For now, there’s no judicial Armageddon. We can continue as usual, making the best out of the system we have — one that could use some improvement but is righteous nonetheless.


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