There aren’t a whole lot of things in politics about which anyone can claim: “This has never happened before!” But in Iowa, a major battle over judicial activism fits the bill. In all the years that Iowans have held to their odd, some would say cozy, system of appointing judges at all levels including the Supreme Court, a justice has never been voted off that court even though they all come up for a vote on a rotating basis. Each election cycle a few justices come up for retention, and in total they face the voters once every eight years. But none has ever been voted out. In 2010, it could happen to three of them at once. Here’s why.
In 1998, Iowa passed its Defense of Marriage Act. The Iowa DOMA has been under attack from the usual groups on the left ever since, and in 2009 the Iowa Supreme Court unanimously struck it down as unconstitutional. And the court took things a few steps farther when the justices also ruled that Iowa’s 160-year history of treating marriage as involving no less and no more than one man and one woman was also unconstitutional. The governor and attorney general, both liberal Democrats, did nothing to represent the people whose representatives had passed DOMA in the first place, so the justices got the last word. Or so it seemed.
Wherever one stands on the question of gay marriage, this ruling was and is the very definition of judicial activism. It produced a result that neither the voters of Iowa nor their elected representatives supported, and it reached beyond the initial scope of the original case against DOMA. It reached far beyond settled law and the Constitution. It has set the entire state on political fire. Newt Gingrich and conservative leader David Barton say that what happens in Iowa on November 2 may be the most important thing to come out of the 2010 midterms, and these midterms may overturn Democratic rule in both houses of Congress and set the nation on course to repeal ObamaCare while hobbling a president. Why do two such heavyweight conservative leaders think Iowa’s judicial elections will be so profound?
Iowa has had it judicial retention system in place since 1962. Finalists for open judgeships are selected by the state bar, which proffers three names to the governor whenever there is an opening on the bench, and the governor picks from the bar’s finalists. They serve 8-year terms and, on a rotating basis, there is a vote on a few of them every two years. Since 1962, only four lower level judges have ever been defeated and no Supreme has ever lost. The vote isn’t a partisan contested election, but a “Yes” for retaining a judge or a “No” for firing them. They routinely win with 75% of the vote. But the three Supremes who are up for retention this year may get fired by the voters of Iowa. The polls are neck and neck. This has truly never happened before. And the DOMA ruling is the prime mover behind all of it.
An activist in Iowa explained it this way: “We know how angry everyone is right now over everything — taxes, ObamaCare, you name it. Now, add something like the Iowa Supreme Court ruling on top of that. People here are even madder at the justices than they are at everything else. No one expected anyone fighting the judges to actually win, but here we are.”
Iowa’s state motto is “Our liberties we prize and our rights we will maintain.” That in mind, meet 47-year-old Pastor Jeff Mullen. He is the pastor of the Point of Grace Church in Waukee. Point of Grace is typical of today’s modern, upbeat churches: contemporary music, non-denominational, a young congregation with a median age of 32. It is the state’s fastest-growing church. Mullen, who says he grew up a “pretty unhealthy Baptist” because he loved the theology but not its application, is leading a group called Iowa Pastors. It’s literally two weeks old and its purpose is to call on Iowans to fight judicial activism.
“I’m involved in this because for too many years as a pastor I have been apathetic, or as I like to say pathetic, in that I would not step out and grow some,” Mullen says. “We are called to have a much broader perspective than we have had. I want to see people in heaven but we have a small world view. I believe the guys my age and younger have been sold such a bill of goods that we cannot be involved in politics. I’ve been trying to find ways to get our people involved in civics and stand up for righteousness. And the Iowa justices provided a perfect storm with their DOMA ruling and our extremely liberal governor and attorney general who went along with it and deemed it acceptable.
“This year we have three justices up for retention. And I thought what a great opportunity to say that this is not acceptable. I stand for traditional marriage, but this goes beyond that in that these justices and judges are way out of control in our nation. You’re losing your freedom whether you’re gay or straight in this nation because the justices and judges consider themselves supreme. They have blown off 160 years of state law and the will of the people.”
Our liberties we prize and our rights we will maintain.
Bob Vander Plaats, leader of Iowa For Freedom, agrees. “This isn’t just about gay marriage. It’s about a court attempting to legislate and amend the Constitution from the bench, which endangers all of our freedoms. That’s tyranny. What you’re gonna see is the people of the heartland hold an activist court in check by voting three justices off the bench.”
Don’t think for a minute that the anti-DOMA forces are taking any of this lying down. The ACLU, the unions, and a group called Justice Not Politics (which is ironically decrying the “politicization” of the retention election, since its entire coalition is made up of overtly political groups) are all battling on the airwaves on behalf of the justices. They even brought in former U.S. Supreme Court Justice Sandra Day O’Connor to echo their pro-judge “politicization” line, only to have the other side respond with a quote from O’Connor in which she said it was perfectly fine to oust the judges on a vote of the people.
The justices themselves are taking their first electoral peril seriously, so seriously that one of them may have crossed a line.
Last Monday Justice Streit swore in all the new attorneys, and I had several friends who were up there taking their oaths swearing in to the bar. And he gave a speech of ten things that they needed to do to be successful attorneys, to be good attorneys. And number ten was to vote for retention.
Along with Chief Justice Marsha Ternus and Justice David Baker, Justice Michael Streit is among the three up for retention — or not — this year. Thus, his admonition on being a good lawyer carries more than a whiff of self-interest, and maybe a hint of panic. But the bar that picked him still loves him, and all the other justices too for that matter.
Current polls have the retention vote too close to call, but Vander Plaats already senses a kind of victory. “Iowans are talking about the Constitution, about standing up for their rights and facing down these judges. We’re experiencing victory right now.” And he explains why this fight over three judges in Iowa may have such a huge effect nationally. “If we do this in Iowa, it will give citizens hope that we can hold the courts in check. That’s not just about any one issue, but about all of them: property rights, freedom of speech, everything.”
Our liberties we prize and our rights we will maintain.
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