Looking for analysis of Iowa’s 2022 judicial retention elections? Click here. Original post follows.

I’ve voted in seventeen general elections in Iowa. Until this week, I’d never voted against retaining an Iowa Supreme Court justice.

Even two years ago, I never expected to arrive at this decision.

A LOW BAR TO CLEAR

Iowans haven’t directly elected judges since 1962. Under a system designed to create “a competent and stable judiciary,” the governor appoints judges from a short list of candidates recommended by independent nominating commissions. Iowa voters later decide whether those judges should stay on the bench. Most judges are up for retention every six years. Iowa Supreme Court justices are on the ballot every eight years.

Some people routinely vote against all judges to protest flaws in the justice system. Some vote against judges if they don’t like the governor who appointed them, or if the judge participated in a ruling they didn’t like.

I was raised by an attorney who believed Iowa’s process worked well. Sure, some judges did their jobs better than others, but on the whole, Iowa jurists were capable. We avoided the legalized corruption that is commonplace in states where attorneys donate to judges’ campaign committees whenever a client’s case lands in their courtroom.

I was horrified by the successful 2010 campaign to oust three Iowa Supreme Court justices whose only sin was joining a unanimous and legally sound ruling on marriage equality. When Governor Terry Branstad’s three replacement appointees–Edward Mansfield, Thomas Waterman, and Bruce Zager–were on the ballot in 2012, I never considered voting against them. I knew I’d disagree with lots of their rulings, and that proved to be true. But I didn’t believe then and don’t believe now that judges should be tossed solely because I don’t like some of their decisions.

For that reason, I’ve voted to retain every judge in most elections. Though it was painful, I even filled in the “yes” oval for District Court Judge Jeffrey Farrell in 2016, despite his boneheaded ruling–later reversed by a unanimous Iowa Supreme Court–upholding an abortion restriction.

Occasionally, when attorneys I trust have given me a compelling reason that someone doesn’t belong on the bench, I have voted no. But I generally view that step as a remedy for extreme cases, when a judge is incompetent or unethical.

The four Supreme Court justices on the 2020 Iowa ballot–Mansfield, Waterman, Christopher McDonald, and Chief Justice Susan Christensen–are all more than capable of doing the job. But three of them engaged in disqualifying conduct last year.

THEY UNDERMINED JUDICIAL INDEPENDENCE FOR SHORT-TERM POLITICAL GAIN

The Republican drive to politicize judicial selection was one of the biggest Iowa politics stories of 2019. The final bill wasn’t as bad as the initial proposal. Still, it allowed the governor to stack the State Judicial Nominating Commission, which had previously had equal numbers of elected attorneys and members appointed by the governor.

The bill also cleared a path for conservatives to replace Chief Justice Mark Cady in early 2021, even though the justices had previously chosen him to serve in that role through 2024. (Unfortunately, the court selected a new chief much sooner, following Cady’s tragic and unexpected death in November 2019.)

Shortly after lawmakers adjourned in April 2019, I learned that at least one Supreme Court justice had encouraged House Republican holdouts to approve this bill during the closing days of the session. Cady later described those events in an extraordinary recusal order.

It’s one thing for Governor Kim Reynolds and Republican lawmakers to try to increase their party’s control of the judiciary. It’s another for Supreme Court justices to join such efforts. While I was investigating this story, many current and former lawmakers and legislative staff told me they knew of no precedent for an associate Iowa Supreme Court justice to weigh in on any pending bill.

Waterman was certainly involved in persuading reluctant House Republicans. I had strong indications from sources that Mansfield and McDonald discussed the bill with the governor’s staff and/or state lawmakers. (The justices did not respond to my inquiries about the matter.)

Iowa’s previous judicial selection process was in place for nearly 60 years. People who haven’t been born yet may one day be governors under the system Republicans enacted in 2019. Waterman, Mansfield, and McDonald can’t be sure future governors will exercise those powers wisely. For all they know, after we’re dead, some long-serving governor will use their majority on the State Judicial Nominating Commission to fill Iowa’s appellate courts with unqualified cronies and political hacks.

The judiciary is supposed to be a separate and coequal branch of government. For any judge to undermine that independence is a deal-breaker, whether driven by personal ambition or the broader goal of packing Iowa’s bench with conservatives.

Is it fair to vote against retaining these justices without knowing all the details about their conversations with key players? Yes, and here’s why.

THEY FLOUTED AN OBLIGATION TO DISCLOSE RELEVANT CONTACTS

As Bleeding Heartland discussed here, plaintiffs challenging Iowa’s new judicial law filed a motion seeking recusal of any Iowa Supreme Court justice who “has, in a nonadministrative capacity, consulted with, advocated with and/or encouraged” any defendant, staff member of any defendant, or legislator to support passage of the bill in question.

Chief Justice Cady was the only member of the high court to recuse himself from hearing the case. In a September 2019 order, he wrote,

A judge presented with the motion for recusal based on specific claims of judicial conduct has two basic obligations. First, the judge must make a record that discloses all relevant facts and circumstances relating to the claim of disqualification. […]

Second, the judge must then consider whether a reasonable person with knowledge of all the facts and circumstances would conclude that the judge’s impartiality could reasonably be questioned.

Iowa’s Code of Judicial Conduct (Rule 51.2.11) states, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned.” A comment attached to that rule explains,

A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

In other words, whether or not the judge decides to hear the case, the judge is obliged to reveal any contacts or relationship that might cause a reasonable person to question their impartiality.

Cady exhaustively documented his communications with various interested parties before recusing himself for a different reason. (Since the bill shortened his term as chief justice, a “reasonable person could conclude that I have a personal interest and financial interest” in the outcome, he wrote.)

Justices Brent Appel and David Wiggins made clear in their orders that they had no such communications about the law being challenged.

The other justices declined to recuse without disclosing whether they “consulted with, advocated with and/or encouraged” passage of the law. Waterman later rejected a second motion by plaintiffs to either recuse himself or “make a public record disclosing all relevant facts and circumstances relating to the claim of disqualification.”

Any reasonable person would want to know whether the justices worked with allies to help enact the law being challenged. As I wrote last September, the judicial code of conduct required all justices to disclose any relevant facts. Their options were: 1) describe their lobbying and explain why they could nonetheless give fair consideration to the case; or 2) put in writing that they did nothing to help pass the bill.

Clearly, the conservative justices realized it would look bad for them to decide this case, because they referred it to the Iowa Court of Appeals. Normally, the Supreme Court would resolve a high-profile political case.

There was no excuse for leaving the litigants and the public in the dark about their suspected role in pulling the bill over the finish line.

WHAT ABOUT SUSAN CHRISTENSEN?

Many progressives are voting against retaining all four Supreme Court justices on the ballot this year. They have similar political leanings; notably, all participated in the 4-3 decisions to uphold Iowa’s 2017 collective bargaining law.

I have serious concerns about Christensen joining a December 2019 dissent stating in part that “stare decisis” (judicial precedent) “has limited application in constitutional matters.” I read that to mean the current chief justice will vote to reverse the Iowa Supreme Court’s 2018 holding that the state constitution protects a woman’s right to an abortion.* But as mentioned above, my decisions on retention aren’t grounded in whether I agree with a judge’s rulings.

It is disappointing that when denying the motion to recuse in the judicial selection case, Christensen failed to state clearly whether she had any communications that would cause a reasonable person to question her impartiality. I believe she was covering for her colleagues rather than concealing any of her own actions. Based on my reporting, I am confident that Christensen did not work with the governor’s staff or lobby members of the Iowa legislature to pass the bill.

Moreover, the chief justice demonstrated earlier this year that she has a degree of independence from the governor who appointed her. As Reynolds rushed to lift most COVID-19 mitigation policies in May and June, Christensen was far more cautious about reopening courts for normal operations.

For those reasons, I voted to retain Christensen.

P.S.–I voted for retaining all of the District Court judges on my Polk County ballot. However, if I lived in Judicial District 6 (Linn, Johnson, Benton, Iowa, Jones, or Tama counties) I would vote against retaining Jason Besler, because Reynolds appointed him in violation of Iowa’s constitution.

UPDATE: Some readers have argued that it’s dangerous not to retain any of these justices, because if they are voted out, Reynolds and a more partisan State Judicial Nominating Commission will replace them with younger, conservative ideologues. That is a valid concern. Nevertheless, I felt compelled to protest the refusal to follow judicial ethics rules by the only means available to me.

*2022 UPDATE: Christensen did not join the Iowa Supreme Court opinion that overturned the 2018 abortion rights precedent. On the contrary:

In a separate opinion for the current case, Christensen observed, “This rather sudden change in a significant portion of our court’s composition is exactly the sort of situation that challenges so many of the values that stare decisis promotes concerning stability in the law, judicial restraint, the public’s faith in the judiciary, and the legitimacy of judicial review.” Although she agreed with the majority that the 2020 law should not be struck down as a single-subject violation, Christensen dissented from most of the majority opinion. She saw no grounds for “such a swift departure from the court’s 2018 decision” and would therefore have found the 24-hour waiting period unconstitutional.

Christensen has favored reversing other Iowa Supreme Court precedents, though, related to warrantless garbage searches and claims related to unrepresentative juries. William Morris covered the court’s approach to precedents in a July 31 story for the Des Moines Register.

Top image: Official portrait of the Iowa Supreme Court from July 2020. Standing, from left: Justice Dana Oxley, Justice Edward Mansfield (up for retention), Justice Christopher McDonald (up for retention), Justice Matthew McDermott. Seated, from left: Justice Brent Appel, Chief Justice Susan Christensen (up for retention), Justice Thomas Waterman (up for retention).