The 10th Circuit Court of Appeals on Friday upheld the Clinton administration’s “roadless rule” affecting more than 50 million acres of National Forest lands. The decision overturned a 2008 ruling by a federal court in Wyoming, which had blocked enforcement of the rule.  

The Iowa Court of Appeals held a ceremony yesterday to mark Chief Judge Rosemary Sackett’s retirement after 28 years of service. Meanwhile, Senator Tom Harkin cleared the way this week for the first woman to be named U.S. District Court judge for Iowa’s southern district.

U.S. District Court Judge John Jarvey dismissed a lawsuit yesterday challenging Governor Terry Branstad’s executive order setting aside project labor agreements for two partly state-funded projects.

One of the most surprising Iowa House Republican winners from 2010 now has a Democratic challenger. Altoona City Council member Joe Riding announced yesterday that he will run against State Representative Kim Pearson in the new House district 30, a swing seat covering much of eastern Polk County.  

Senator Chuck Grassley and Representative Steve King (IA-05) spoke out this week for preserving the 1996 federal Defense of Marriage Act, which states that the federal government recognizes only marriages between one man and one woman. The Senate Judiciary Committee held a July 20 hearing on S. 598, the Respect for Marriage Act. That bill would repeal part of the DOMA so that for purposes of federal law, “an individual shall be considered married if that individual’s marriage is valid in the state where the marriage was entered into.” Six states and the District of Columbia recognize same-sex marriages.

Grassley is the ranking Republican on the Judiciary Committee, and his opening statement in yesterday’s hearing asserted that “George Orwell would have marveled” at calling S. 598 the “Respect for Marriage Act.” In Grassley’s view, the bill would undermine the institution of marriage. He denied that Congress passed DOMA in 1996 “to express disapproval of gay and lesbian people.” He asserted that supporters of DOMA now face threats and intimidation that amount to an “unacceptable” “chilling of First Amendment rights.”

Grassley invited King to testify before the committee, and in his statement, King asserted that recognizing same-sex marriages would devalue the institution of marriage. Saying “you can’t choose who you love” could be used to justify incestuous or polygamous unions, King told the senators. He also argued that the DOMA is consistent with the will of the American people, who have voted in 31 states to restrict legal marriage to one man and one woman. (More recent opinion polling has shown growing support for same-sex marriage rights.)

After the jump I’ve posted the full texts of Grassley’s opening remarks and King’s testimony. Both Iowa Republicans described the government’s interest in protecting marriage as an institution that promotes procreation. King cited a 1942 U.S. Supreme Court ruling that said, “Marriage and procreation are fundamental to the very existence and survival of the race.” During the past decade, several state Supreme Courts have rejected that argument as a reason to deny same-sex couples the benefits of marriage.

Multiple plaintiffs have challenged the constitutionality of the federal DOMA. Click here for a brief summary of six lawsuits working their way through federal courts. In July 2010, a U.S. District Court judge hearing two of those cases in Massachusetts struck down section 3 of the DOMA. In February of this year, President Barack Obama instructed the U.S. Department of Justice not to defend “the constitutionality of Section 3 of DOMA as applied to same-sex married couples” as applied in those two court cases. This week, White House spokesman Jay Carney affirmed that the president supports repealing DOMA. King claimed in his testimony that President Obama said DOMA is unconstitutional “despite no court ever reaching that conclusion.” He may be unaware of U.S. District Court Judge Joseph Tauro’s ruling from last summer.

While I support repealing DOMA, I view the current debate over S. 598 as a somewhat cynical public relations exercise. Everyone knows that the Republican-controlled U.S. House would never approve a DOMA repeal bill. Had Democrats tried to move this legislation when they held majorities in both houses of Congress, I would give them more credit. It’s notable that Obama publicly voiced his opinion about DOMA only after its repeal was a dead letter in the House.

Any comments about marriage equality are welcome in this thread.

The U.S. Senate confirmed J. Paul Oetken as a District Court just for the Southern District of New York today, making Oetken the first openly gay person confirmed for a federal judgeship. The Senate vote was 80 to 13 (roll call), with Republicans casting all of the no votes. Iowa Democrat Tom Harkin and Republican Chuck Grassley both voted yes on Oetken’s nomination. Throughout his career, Grassley has usually voted to confirm judges nominated by presidents from either party. However, Grassley voted against confirming both of President Barack Obama’s nominees to the U.S. Supreme Court, Sonia Sotomayor and Elena Kagan. More recently, Grassley helped filibuster Goodwin Liu’s nomination for the 9th Circuit U.S. Court of Appeals.

Oetken was valedictorian at Regis High School in Cedar Rapids before graduating from the University of Iowa in 1988 and from Yale Law School in 1991. Here is more background on his career in law and business:

Oetken is currently the senior vice president and associate general counsel of Cablevision, a cable television company primarily serving customers on the eastern seaboard. He has a long history of federal service, previously serving as a clerk to Supreme Court Justice Harry A. Blackmun and attorney-advisor in the United States Department of Justice Office of Legal Counsel. Oetken was recommended to replace Judge Denny Chin on the United States District Court for the Southern District of New York by New York Senator Charles E. Schumer. […]

Schumer called Oetken a “strong advocate for the LGBT community” in his statement, citing Oetken’s support of the ACLU Lesbian Gay Bisexual & Transgender Project as well as the amicus brief he co-authored in the Supreme Court case Lawrence v. Texas, which struck down the sodomy law in Texas.

“The Texas Homosexual Conduct Law violates principles that are basic to the Equal Protection Clause of the Fourteenth Amendment,” stated the introduction to the amicus brief, which Oetken wrote with Chai R. Feldblum, a commissioner of the Equal Employment Opportunity Commission. “[A]nimosity toward a group of people is not a legitimate purpose for governmental discrimination against such a group.”

Speaking on the Senate floor today, Schumer said Oetken

will give hope to many talented young lawyers who, until now, thought their paths might be limited because of their sexual orientation. When Paul becomes Judge Oetken, he will be living proof to all those young lawyers that it really does get better.

Schumer also hailed Oetken’s “moderation,” which (along with his work for a major media company) may explain why Oetken won support from so many Senate Republicans.

Perhaps some Bleeding Heartland readers remember Oetken from his time in Cedar Rapids or Iowa City. Regis alums must be proud.

The Democratic-controlled Iowa Senate has rejected only two of Governor Terry Branstad’s nominees this year. One of them, former Department of Human Rights Director Isaiah McGee, started a new job Friday as education program consultant for achievement gaps and student equity at the Iowa Department of Education. Controversy surrounding McGee’s instructions to Human Rights staff and members of certain state commissions hurt the nominee with Senate Democrats. He fell a few votes short of confirmation. McGee stayed in his position at Human Rights until today; state law allows rejected nominees to keep serving for 60 days after the failed confirmation vote. State Department of Education Director Jason Glass “sought out” and offered McGee his new job as a program consultant, Branstad told journalists today. Glass commented,

“I am excited Isaiah will be joining us, because he has numerous talents and knowledge that will benefit the people of Iowa,” Glass said. “He is the exact right person for this job, as we need to continually serve the needs of all students in Iowa. Isaiah is passionate about education and will offer thoughtful solutions to the challenges we face in our educational system, and work to see those solutions through.”

Branstad hasn’t named a permanent director for the Department of Human Rights. Today he appointed Danielle Plogmann as interim director. She handled communications for the Republican Party of Iowa during the 2010 election cycle and early this year, until McGee hired her in March to be his executive assistant. Speaking to reporters today, Branstad twice described Plogmann as “loyal”:

“She has worked there, in the department, and I wanted to have somebody that I thought was loyal and somebody that I thought would work well with everybody.” […]

Branstad is interviewing candidates to take over as the director of the Department of Human Rights and he does not anticipate that Plogmann will be more than a temporary agency chief.

“I think this will be fairly short term,” Branstad said. “But I think she is somebody that I think is loyal and competant and can do the job in the short term and we will have a permanent director named in the near future.”

I’m not clear on what Plogmann’s loyalty (to the governor? to McGee’s vision? to Republican values?) has to do with managing the Department of Human Rights. I hope Branstad appoints a permanent director with a bit more relevant experience.

In related news, this week the governor named Michael Mullins to the Iowa Court of Appeals. Mullins is a registered Republican and has served as a District Court judge since 2002. He replaces Edward Mansfield, whom Branstad appointed to the Iowa Supreme Court in February. Mullins was also on the short list of Iowa Supreme Court candidates the State Judicial Nominating Commission sent to the governor.

Incidentally, one of Branstad’s appointees to the State Judicial Nominating Commission was the other person Iowa Senate Democrats declined to confirm. Branstad’s replacement pick for that position was Jim Kersten, whom the Senate unanimously confirmed last month. A Fort Dodge native, Kertsen served as a Republican member of the Iowa House and Iowa Senate and also as an assistant to Branstad during his earlier tenure as governor. Kersten currently works as Associate Vice President of Development and Government Relations at Iowa Central Community College in Fort Dodge. He recently was one of seven heavy-hitting Iowa Republicans who flew to New Jersey to encourage Governor Chris Christie to run for president.

Yesterday Senator Chuck Grassley and almost all his Senate Republican colleagues blocked a motion to end debate on the nomination of Goodwin Liu for the 9th Circuit U.S. Court of Appeals (roll call). Tom Harkin and all but one Senate Democrat voted for the cloture motion. A 40-year-old law professor at the University of California in Berkeley, Liu had strong academic and legal credentials. Conservatives opposed his liberal policy views as well as his criticism of President George W. Bush’s Supreme Court nominee Samuel Alito. During his confirmation hearing in March, Liu said the conclusion of his 2006 testimony against Alito showed “poor judgment.”

Liu would have been the only Asian-American on the 9th Circuit panel, which covers territory where more 40 percent of Asian-Americans live. Some observers have suggested that Republicans wanted to keep Liu off the appeals bench to prevent him from being a future U.S. Supreme Court nominee. (Similar concerns were raised about Supreme Court Justice Sonia Sotomayor when President Bill Clinton nominated her for an appeals court judgeship in the 1990s.) President Barack Obama has drawn criticism for the “slow pace” of his judicial nominations, but he had nominated Liu three times for this post.

Liu was the second high-profile Obama appointee filibustered this month. On May 9, Grassley and most of his Senate Republican colleagues blocked a motion to end debate on the nomination of James Cole for deputy attorney general. The president had nominated Cole for the position in May 2010, naming him as one of six recess appointees in December after Republicans long delayed considering his nomination.

Cole has extensive experience in private practice and in various Justice Department positions. He is best known for being the House Ethics Committee special counsel who investigated then Speaker Newt Gingrich in 1997. Gingrich ultimately paid a $300,000 fine for breaking House ethics rules; Cole discussed that investigation at length in this 1997 interview.

Grassley didn’t mention the Gingrich investigation in his lengthy prepared floor statement opposing Cole’s nomination. Grassley cited the Justice Department’s failure to cooperate with investigations into whistleblower allegations, as well as a 2002 op-ed piece Cole wrote advocating criminal trials in U.S. civilian courts rather than military tribunals for terrorism suspects. Finally, Grassley criticized Cole’s work as an independent consultant hired in 2004 to monitor the insurance giant AIG’s compliance with a securities fraud settlement.

The least convincing part of Grassley’s statement on Cole was this: “I have been consistent in my opposition to recess appointments over the years.” Trouble is, President George W. Bush “made 171 recess appointments, of which 99 were to full-time positions.” I do not recall Grassley filibustering a Bush nominee for any position.

Grassley may have been especially upset by Obama’s December 2010 batch of recess appointees because they included Norm Eisen for U.S. ambassador to the Czech Republic. The U.S. had been without an ambassador to that country for two years, and Grassley was the lone senator holding up Eisen’s nomination. He “accused Eisen of improperly firing an inspector general for partisan political reasons”; Eisen denied that claim. In January, Grassley and House Oversight and Government Reform Committee Darrell Issa wrote to White House Counsel Bob Bauer, calling Eisen’s appointment “particularly inappropriate.”

UPDATE: After the jump I’ve added Grassley’s official statements on the Goodwin Liu nomination and the failed cloture vote. I also added the full prepared floor statement from Grassley on May 18, explaining his reasons for opposing Liu. These prepared remarks do not include statements Grassley made on the Senate floor that day, asking rhetorically whether Liu thinks “we’re the communist-run China.” Speaking in the chamber, Grassley suggested that by discussing how conservatives use terms like  “free enterprise” and “private ownership of property” as code words, Liu was implying that “if you get government more involved, like they do in China, it’s somehow a better place.”

The D.C. Circuit Court of Appeals lifted an injunction today on federally-funded research involving embryonic stem cells. Last August a District Court judge blocked federal government funding for such research, citing a 1996 law against funding “research in which a human embryo or embryos are destroyed” or discarded. However, two of the three judges on the Appeals Court panel found that the injuntion would impose “certain and substantial” harm on stem cell researchers, and that plaintiffs in the case “have not shown they are likely to succeed on the merits.” Click here (pdf file) for the full text of today’s ruling.

Senator Tom Harkin and Representatives Bruce Braley and Dave Loebsack all released statements today welcoming the decision as a victory for promising medical research. (The University of Iowa’s Carver College of Medicine was among facilities adversely affected by the district court ruling.) I’ve posted those statements after the jump and will update this post if and when other Iowa elected officials comment on the ruling.  

Last week, a group of conservative Iowa House Republicans finally made good on their promise to introduce articles of impeachment against the four remaining Iowa Supreme Court justices who concurred in the 2009 Varnum v Brien decision on marriage. The impeachment bills won’t make it out of committee, let alone the Iowa House, but there may be some political fallout from the effort.

After the jump I examine the articles of impeachment, future prospects for their backers and recent news related to the 2012 judicial retention elections.

Political junkies anxiously await the Legislative Services Agency’s release of a new Iowa map at 8:15 am on March 31. To learn more about the process, check out the “Introduction to Redistricting in Iowa” from the state legislature’s official website. The Legislative Guide to Redistricting in Iowa (pdf) contains many details on the history of redistricting and legal requirements governing the process for drawing new maps. Here’s a timeline of what to expect during this process.

March 31: The Legislative Services Agency will deliver a congressional and legislative redistricting plan to both chambers of the General Assembly (the law requires this to be done by April 1).

April 4-7: The Temporary Redistricting Advisory Commission must “schedule and conduct at least three public hearings in different geographic regions of the state and to issue a report to the General Assembly summarizing the information and testimony received.” This year the commission scheduled four public hearings, one for each Congressional district. Locations and times of public hearings scheduled for April 4-7 are at the end of this post.

April 13: The commission must then report to the legislature on the input from public hearings, no later than two weeks after the Legislative Services Agency submitted the plan.

Second half of April: The Iowa House and Senate must bring a redistricting bill to a vote “expeditiously” but no sooner than three days after receiving the Temporary Redistricting Advisory Commission’s report. The map receives an up or down vote; lawmakers cannot amend it during this stage of the process.

Late May or early June: If the Iowa House or Senate rejects the first redistricting plan, or Governor Terry Branstad vetoes it, the Legislative Services Agency has 35 days to submit a second plan to the legislature. “The second plan must be prepared in accordance with the reasons cited, if any, by the Senate or the House by resolution or the Governor by veto message, for the failure to approve the first plan, as long as the reasons do not conflict with any redistricting standard provided by the Code.” No public hearings are required on the second redistricting plan. The Iowa House and Senate must wait at least seven days after it has been submitted to vote on it, and again, no amendments are allowed. Branstad would have to call a special session of the legislature for this, since the Iowa House and Senate are expected to adjourn for the year in early May.

Late summer: If either chamber of the legislature or the governor rejects the second plan, the Legislative Services Agency is required to submit a third map within 35 days of when the second plan was rejected. No public hearings are required. The legislature must wait at least seven days to vote on the third plan, which can be amended like an ordinary bill. However, the Republican-controlled Iowa House and the Democratic-controlled Iowa Senate would probably find it difficult to amend the map to a mutually agreeable form.

September: If no consensus is reached on a third map, or Branstad vetoes a map approved by the legislature, the Iowa Supreme Court would take responsibility for drawing a valid map and would have to complete the process by December 31. If the legislature enacts a plan that is successfully challenged in the Iowa Supreme Court, the seven justices would take over the process of drawing a new apportionment plan. They would have 90 days from the date of their ruling striking down the map to complete the process.

The Des Moines rumor mill says politicians in both parties are wary of letting the Iowa Supreme Court draw political lines for the next decade. In all likelihood state legislators and the governor will sign off on either the first or the second map offered by the Legislative Services Agency. UPDATE: Citing unnamed Republican and Democratic insiders, Cityview’s Civic Skinny predicts the first map will be rejected “no matter how fair and how close to perfect it is,” but legislators will “avoid a third map that could conceivably be defeated.”

After the jump I’ve posted details on many events going on around the state this week. Scroll to the bottom to find out where and when the public can comment on the new Iowa map between April 4 and 7.

Clark Kauffman has a interesting story in today’s Des Moines Register about William Gustoff, one of Governor Terry Branstad’s two recent appointees to the State Judicial Nominating commission. Apparently it is unprecedented for an Iowa governor to name an attorney to this commission. Gubernatorial appointees are typically non-lawyers, while the State Bar Association selects lawyers to serve. Kauffman noticed something else I didn’t realize about Gustoff:

Gustoff is among four lawyers representing four Iowans in a federal lawsuit against the nominating commission.

Ironically, one of the claims made by the plaintiffs in that case is that the makeup of the commission – half lawyers, half lay people – is biased against nonlawyers because they have no say in the selection of half the commission.

The lawsuit was first filed in December. In February, it was dismissed by a federal judge who said the plaintiffs failed to show a clear violation of their constitutional rights. An appeal is now pending in the 8th U.S. Circuit Court of Appeals.

Gustoff said that although he is listed as the lead attorney for one of the plaintiffs, his involvement in the case was minimal at first and is almost nonexistent now.

“I’m not really that involved in it,” he said. “I haven’t taken any steps to remove myself from the case as the attorney of record. But I am not admitted to the 8th Circuit Court of Appeals, so I can’t file anything now, and I really have nothing to do with it at this point.”

Gustoff said he’s not a trial lawyer, and his practice is focused on estate planning and nonprofit law. As a result, he said, he will bring to the commission the perspective of an average citizen, rather than that of a typical lawyer.

Asked why, if he specializes in estate planning and nonprofits, he was hired to handle the lawsuit against the commission, Gustoff said he’s not sure. “They got me from somewhere,” he said, laughing. “I don’t know. I never asked them how they got my name.”

Gustoff works in the law firm of Whitaker Hagenow, which is run by Chris Hagenow, a Republican state representative who has sponsored legislation to abolish the Judicial Nominating Commission, and Matt Whitaker, a former Supreme Court applicant who has accused the commission of manipulating the selection of Supreme Court justices.

Neither Hagenow’s bill nor other proposals to change the judicial nominating system made it past the Iowa legislature’s “funnel” deadline last week.

Bleeding Heartland discussed the federal lawsuit against the judicial nominating commission here. The case seems quite weak. It’s telling that the attorneys running the show in this politically-motivated lawsuit selected Gustoff (a partner in a conservative law firm) as opposed to some Iowa attorney with experience in litigation or constitutional law.

Kauffman paraphrases Branstad spokesman Tim Albrecht as confirming that the governor picked Gustoff “because of his conservative leanings.” Branstad’s other appointee to the judicial nominating commission is a non-laywer, Helen St. Clair of Melrose. She is presumably related to Maurice St. Clair of Melrose, who donated about $45,000 to Branstad’s gubernatorial campaign. Most of the remaining members of the judicial nominating commission are registered Democrats.

UPDATE: Nathan Tucker calls Kauffman’s article “journalistic malpractice”. Excerpts from his case are after the jump.

Governor Terry Branstad today named Edward Mansfield, Thomas Waterman and Bruce Zager to fill the three Iowa Supreme Court vacancies created by last November’s judicial retention vote. Mansfield practiced law in Des Moines for many years before Governor Chet Culver appointed him to the Iowa Court of Appeals in 2009. Waterman has long been an attorney in private practice in Pleasant Valley. Zager practiced law in Waterloo before Governor Tom Vilsack named him to the First District Court in 1999. He “spent 18 years in private practice and served part time as a Black Hawk Assistant County Attorney for 12 years.”

KCCI posted Mansfield’s interview with the State Judicial Nominating Commission here, Waterman’s interview here and Zager’s interview here. Branstad privately interviewed the nine finalists for the Supreme Court vacancies last week. The governor’s official statements announcing all three appointments are after the jump.

All three appointees are registered Republicans. Waterman has made the most political contributions, primarily to Republicans, and his $7,500 donation to Branstad’s gubernatorial campaign attracted some media attention last month. (Waterman also gave $250 to the attorney general campaign of Brenna Findley, who is Branstad’s legal counsel.) Asked whether the donation to his campaign made him uncomfortable, Branstad joked, “No, I think that’s great […] Listen I wish more of them had contributed.” He added that private citizens “have a right to contribute and participate in the political process,” and that Waterman’s donation would not influence his decision.

In a statement, Supreme Court Chief Justice Mark Cady praised the three appointees as well as Branstad and members of the judicial nominating commission. I’ve posted that statement after the jump. Cady’s colleagues chose him as chief justice after voters rejected Marsha Ternus, David Baker and Michael Streit. Once Mansfield, Waterman and Zager are sworn in, all seven Iowa Supreme Court will hold a new election for chief justice.

Although all the appointees are qualified, I find it disappointing that Iowa will have an all-male Supreme Court for the first time since 1986. The only woman on the short list, University of Iowa law professor Angela Onwuachi-Willig, had many qualifications but had no chance of being appointed by Branstad, for obvious reasons I discussed here. In fact, the governor didn’t even pretend to think seriously about appointing Onwuachi-Willig. Before interviewing the finalists, he publicly expressed regret that the State Judicial Nominating Commission didn’t send him more women candidates.

I share Cris Douglass’ view that including only one woman on the short list sent to Branstad reflects poorly on the nominating process. After the jump I’ve posted excerpts from a guest column Douglass published in the Des Moines Register on February 4. She notes that the men and women who applied for Iowa Supreme Court vacancies had comparable experience and backgrounds, yet the men had a far better chance of becoming finalists. Seeing highly qualified woman applicants passed over gives the impression that either commissioners had a conscious or unconscious bias toward male applicants, or perhaps that some sought to force an embarrassing choice on Branstad. He appointed both previous women who have served on Iowa’s high court (Linda Neuman and Marsha Ternus) and likely would have appointed a woman if any politically palatable female candidate had been a finalist.

Adding three Republicans to the state Supreme Court is unlikely to end legislative efforts to reform Iowa’s judicial nominating process or restrict the Supreme Court’s powers. More on that in a post to come. Share any comments related to the Iowa Supreme Court in this thread.

UPDATE: I’ve added below the statement from former Iowa Lieutenants Governor Sally Pederson and Joy Corning on behalf of the Justice Not Politics coalition. That nonpartisan coalition supports keeping the merit selection system Iowa has used for choosing judges since 1962. Justice Not Politics leaders recently submitted more than 3,200 signatures to Iowa House and Senate leaders calling for an end to “any conversation about impeaching Supreme Court justices.” Some conservative Republicans have advocated impeaching the four remaining justices who concurred in the 2009 Varnum v Brien ruling on marriage. The effort is unlikely to clear the Iowa House Judiciary Committee.

SECOND UPDATE: The Des Moines Register notes that Iowa is now one of only three states with no women on its highest court. In an interview, Branstad “declined to answer a question about whether he’d received a satisfactory list of candidates from the commission.”

That same Des Moines Register article quotes Iowa House Judiciary Committee Chairman Rich Anderson as praising the state’s “great judicial merit selection process.”

At the bottom of this post I’ve added more reaction to the Mansfield, Waterman and Zager appointments.

Clerking for a state legislator is a great first job in politics, but here’s a warning to the young and politically involved: sharing your personal views on Facebook can get you fired. Tyler Kingkade has the story at the Iowa State Daily:

Jessica Bruning didn’t think her personal stance on political issues would jeopardize her position as a clerk with Rep. Renee Schulte, R-Linn, in the Iowa legislature. However, after a Facebook post bucked the Republican party’s stance on the impeachment of the state Supreme Court justices, she quickly found herself out of a job.

She had been told to “tone it down” after the State of the Judiciary speech by Chief Justice Mark Cady, where she took part in standing ovations along with Democrats.

During the 2010 election season, Bruning worked for the Branstad-Reynolds campaign but often shared information on Facebook about Justice Not Politics – a bipartisan group formed to advocate retention of the justices. […]

Bruning continued to share articles and information in support of the justices after the elections as House Republicans began talk of impeaching the remaining judges.

But after a Facebook post in January, the next thing Bruning knew she was let go from her position as a clerk. She said she currently cannot go into further details on the event.

Technically, the Iowa House Republican caucus isn’t committed to impeaching the four remaining justices who concurred in the Varnum v Brien ruling on marriage. In fact, House Judiciary Committee Chairman Rich “we want to drive procreation” Anderson has said he doubts articles of impeachment would clear his committee. Nevertheless, I’m not surprised that Bruning got fired by criticizing the impeachment drive, especially after she stood up to applaud Chief Justice Cady. His speech wasn’t warmly received by the House Republican caucus.

To me, the most surprising thing about this story is that Bruning was hired as a clerk for Schulte despite having criticized the anti-retention drive during the campaign. To my knowledge, not a single Iowa GOP lawmaker or legislative candidate advocated voting to retain the three Supreme Court justices on the ballot. Speaking to Kingkade,

Bruning said young people are often told throughout their years in school to get involved and voice their opinion, “Then when I post a simple Facebook status, I get fired. They’re conflicting messages.”

That’s the way the cookie crumbles if your Facebook status goes against your political party’s dominant view. If Bruning had been lambasting the justices on social media, or bashing impeachment while clerking for a Democratic state representative, she’d still have a job today.

UPDATE: Schulte disputes Bruning’s account but declined to specify why the clerk was sacked:

Two weeks ago, Schulte gave The Des Moines Register a brief statement about Bruning’s assertion, deferring additional questions to House Republican leadership.

“The short answer is no,” she was not fired for supporting same-sex marriage rights, Schulte told the Register. “Basically she’s an at-will employee. It could be for any reason. It makes me sad that she thinks that that’s why.”

U.S. District Court Judge Roger Vinson struck down last year’s health insurance reform law yesterday, backing the lawsuit filed by Florida’s attorney general and joined by 25 other states. Vinson’s 78-page opinion can be read in full here. David Kopel summarized the key points at the Volokh Conspiracy blog:

1. The 26 states lose on the argument that the mandate for drastically increased state spending under Medicaid is unconstitutional. State participation in Medicaid always has been voluntary, and remains so. […]

2. The plaintiffs win on the individual mandate. The individuals plaintiffs, and the National Federation of Independent Businesses have standing to challenge the mandate. So do Utah and Idaho, at the least, because of state statutes forbidding health insurance mandates. According to original meaning, “commerce” was trade. Citation to Randy Barnett. Even the modern precedents require “activity” as a predicate for commerce clause regulation.[…]

3. Necessary & proper does not save the mandate. […]

4. The mandate is not severable from the health control act. Defendants themselves have argued forcefully that the mandate is absolutely essential to the entire regulatory scheme. There is no severability clause. The mandate is tightly integrated into the entire act. […]

6. The entire act is declared void. […] Of course the 11th Circuit might grant a stay, and Judge Vinson might also do so, but as of right now, there is no stay.

The White House immediately made clear that the federal government will continue to implement the Affordable Care Act. I would be shocked if the U.S. Court of Appeals doesn’t grant a stay of Vinson’s ruling, especially since two other U.S. district court judges ruled last year that the individual mandate is constitutional. Vinson’s ruling went further than U.S. District Court Judge Henry Hudson’s decision in December, which struck down the federal requirement that individuals purchase health insurance but let the rest of the law stand. Click here for links to numerous reactions to Vinson’s ruling. Legal analyst Ilya Somin finds the judge’s reasoning persuasive, while Orin Kerr argues that Vinson erred by going against precedent (Supreme court case law). Dave Weigel explains how Congressional Democrats failed to include a standard severability clause in this legislation. Brian Beutler notes that U.S. Supreme Court Chief Justice John Roberts (one of the most conservative members of the high court) recently struck down a single provision of a law that lacked a severability clause.

Representative Steve King (IA-05), a champion of efforts to repeal health insurance reform, was jubilant about yesterday’s news: “Many of us opposed ObamaCare in part because of our oath to the Constitution. Any member who had reservations should now be empowered to vote with those of us who will cut off all funding to ObamaCare starting with the continuing resolution.” The full text of King’s press release is after the jump.

Iowa State Senator Jack Hatch blasted Vinson’s “blatant judicial overreach” and expressed confidence that courts will ultimately uphold the federal law. Hatch chairs the Working Group of State Legislators for Health Reform and joined more than 70 state lawmakers who filed a “friend of the court” brief in the Florida case supporting the constitutionality of the law. The full press release from Progressive States Network and the Working Group of State Legislators for Health Reform is after the jump.

Senators Tom Harkin and Chuck Grassley didn’t release any statement on Vinson’s ruling, which surprised me, since both quickly reacted to Hudson’s ruling against the individual mandate in December. Yesterday Harkin publicized the first in a series of Senate HELP Committee hearings about “the tangible, positive impact that [health insurance] reform is having on Americans’ lives.”

Governor Terry Branstad joined the plaintiffs in the Florida lawsuit two weeks ago (disregarding Iowa Attorney General Tom Miller’s opinion). I was surprised not to see any statement from the Branstad administration on Judge Vinson’s ruling yesterday. I will update this post with further Iowa reaction as it becomes available.

UPDATE: Through the governor’s Twitter account, Branstad’s communications director Tim Albrecht said released this statement:

“This health care law is clearly not sustainable nor is it affordable for the long-term. I believe it would be appropriate for both parties to start over and advance a plan that is more workable.”

When I asked how questions about whether the law is sustainable or affordable related to the constitutional matters at hand (judge rejecting argument against Medicaid expansion but accepting case against individual mandate), Albrecht added, “The governor continues to believe the individual mandate is unconstitutional.” To my knowledge, Branstad has not publicly acknowledged that a few years ago he supported a state mandate to purchase health insurance.

After interviewing 60 applicants for the three vacancies on the Iowa Supreme Court this week, the State Judicial Nominating Commission sent Governor Terry Branstad a list of nine candidates on January 27. After the jump I’ve posted the press release naming the nine finalists. Five are lower-court judges (four district court, one appeals court), three are attorneys in private practice, and one is on the University of Iowa law school faculty. Branstad has to select three appointees within the next thirty days. Click here for information about and writing samples by all 60 applicants.

My first thought on reading the short list was that going forward, Iowa’s high court will have no women justices for the first time in many years. Twelve women applied for the Supreme Court vacancies, including District Court Judge Annette Scieszinski of Ottumwa and two assistant attorneys general, Jeanie Vaudt and Elisabeth Reynoldson. Since former Chief Justice Marsha Ternus was not retained by Iowa voters and had been the only woman on the court, I expected the commission to include at least a couple of women on the nominees list sent to Branstad. However, only University of Iowa Professor Angela Onwuachi-Willig made the short list, and I see zero chance Branstad will select her. It’s not that she is the youngest of the nine candidates; at her age (37), Branstad was governor of Iowa. The salient fact is that Onwuachi-Willig submitted a friend of the court brief in the Varnum v Brien case, supporting the plaintiffs who were seeking to have the Defense of Marriage Act struck down. I can’t imagine any scenario in which Branstad chooses a public supporter of marriage equality for a judgeship.

Nathan Tucker of the recently-formed conservative 501(c)4 group Iowa Judicial Watch posted the party affiliations and campaign donation history of all nine finalists, as well as links to their application materials and interviews with the judicial nominating commission. Eight of the finalists refused to fill out Iowa Judicial Watch’s questionnaire. Appeals Court Judge Edward Mansfield filled out most of the lengthy document but declined to answer question 26, containing some three dozen more specific questions about his “judicial ideology.” Still, Tucker took a cheap shot at Mansfield, stating, “Though a registered Republican, Mansfield’s wife has donated good and services to Planned Parenthood.” Dangling modifiers aside, donations by Mansfield’s wife don’t necessarily reflect the judge’s views and certainly don’t affect his competence to serve on the Iowa Supreme Court. Looks to me like Tucker wanted to signal to The Iowa Republican blog’s readership that they should oppose Mansfield despite his Republican affiliation.

A more extensive update on news related to the Iowa Supreme Court is in progress. Meanwhile, share any relevant thoughts in this thread.

P.S. Before the commission began interviewing candidates, Iowa House Judiciary Committee Chairman Richard Anderson withdrew his application to serve on the Iowa Supreme Court.

UPDATE: Only two women have ever served on the Iowa Supreme Court: Linda Neuman from 1986 to 2003 and Marsha Ternus from 1993 to the end of 2010. If appointed by Branstad (she won’t be), Onwuachi-Willig, who is black, would be the first ethnic minority on the Iowa Supreme Court.

Iowa Supreme Court Chief Justice Mark Cady addresses the Iowa legislature this morning in what will surely be the most-watched ever state of the judiciary speech. Iowa Public Television is carrying the live feed at 10 am, and I’ll liveblog after the jump. Cady is the senior justice remaining on the high court, having been appointed by Governor Terry Branstad in 1998. He is also the author of the 2009 Varnum v Brien ruling, which struck down Iowa’s Defense of Marriage Act. That decision sparked a successful campaign against retaining Chief Justice Marsha Ternus and Justices Michael Streit and David Baker in November. The four remaining justices chose Cady to serve as chief justice until replacements for Ternus, Streit and Baker have been appointed.

So far 61 people have applied for a position on the Iowa Supreme Court. The current list is here, but more applications may come in by the deadline (January 14). So far applicants include 10 women and 51 men from many different towns and cities of the state. Most are in their 40s or 50s. The few applicants in their 30s include both U.S. attorneys appointed by George W. Bush for Iowa (Matt Whitaker and Matt Dummermuth). One Republican state legislator, Iowa House Judiciary Committee Chair Rich Anderson, has applied as well. The Des Moines Register noted that one applicant, University of Iowa law professor Angela Onwuachi-Willig, submitted a brief in support of same-sex marriage when the Supreme Court was considering the Varnum v Brien case. Another applicant, Michael Keller, has praised that ruling, which allowed him to marry his partner.

State Court Administrator David Boyd told the Des Moines Register that “he was ‘very pleased, and maybe a little surprised’ with the quality and number of applicants, given the intense public scrutiny on the court since the election.” The state judicial nominating commission “welcomes written comments from the public about the qualifications of any of the applicants.” After interviewing the candidates, the judicial nominating commission will send a short list of nine names to Branstad, who will fill the three vacancies.

P.S. This week a report by the National Institute on Money in State Politics summarized the independent expenditures in last year’s retention campaign. Supporters of retaining Ternus, Streit and Baker were vastly outspent by groups seeking to oust the justices.

UPDATE: Liveblog starting now after the jump. Iowa Public TV will rebroadcast the speech at 9:30 pm on Wednesday.

THURSDAY UPDATE: House Judiciary Committee Chair Anderson seems to be closing the door on impeachment.

Rep. Rich Anderson, R-Clarinda, said he personally believes that the justices’ actions in issuing a ruling that in effect legalized same-sex marriage do not meet the standard for impeachment spelled out in the Iowa Constitution: “misdemeanor or malfeasance in office.” The court ruled that an Iowa law limiting marriage to a man and a woman was unconstitutional.

He said his gut reaction is that the yet-to-be-filed bill won’t make it out of his committee, one of the first steps in the legislative process.

“I don’t believe there’s any likelihood of impeachment,” Anderson said.

I’ve posted more reactions to Cady’s speech from state legislators below.  

The Iowa legislature convenes this morning for its 2011 session. Join me after the jump for clips on two of the most contentious issues to be resolved this session: proposed spending cuts and impeachment proceedings against four Iowa Supreme Court justices.

UPDATE: You can listen to opening speeches by Senate President Jack Kibbie, Senate Minority Leader Paul McKinley, Senate Majority Leader Mike Gronstal, House Speaker Kraig Paulsen, House Speaker Pro Tempore Jeff Kaufmann, House Minority Leader Kevin McCarthy, and House Majority Leader Linda Upmeyer at the Radio Iowa site.

SECOND UPDATE: Lawmakers issued the official canvass of the 2010 gubernatorial election: Branstad/Reynolds 592,079 votes, Culver/Judge 484,798 votes.

This week is a big one in Iowa politics, with the state legislature’s 2011 session starting Monday and Terry Branstad’s inauguration for a fifth term as governor on Friday. Several non-profits are organizing members and supporters to lobby legislators as well. Event details are after the jump.

One of my new year’s resolutions is to post event calendars regularly at Bleeding Heartland. Activists and politicians can help by sending your event notices to me: desmoinesdem AT yahoo.com. Please post a comment if you know of something I’ve left out.

You don’t have to be a “friend and former adviser on three of Bob Vander Plaats’ campaigns” for governor to know what Dan Moore writes in a Des Moines Register guest editorial today. But the assessment packs more of a punch coming from a former close associate:

Bob is obsessed with the gay-marriage issue. He is so obsessed that he would rather see the Iowa judicial system destroyed, instead of pursuing a change in the law within the channels provided (a constitutional amendment).

This post continues below.

Before the November election, advocates for retaining the three Iowa Supreme Court justices on the ballot warned that throwing out the judges over one controversial decision would bring more politics into the judicial arena. The new debate over impeaching the four remaining Supreme Court justices shows that’s exactly what has happened.

In 2009, calls for impeaching the Supreme Court justices were a bridge too far even for Bob Vander Plaats, Iowa’s leading critic of the Varnum v Brien ruling. Now newly-elected Republican State Representatives Tom Shaw, Kim Pearson and Glen Massie are drafting articles of impeachment to introduce during the 2011 legislative session.

So far not one GOP official has spoken out against using a controversial ruling as grounds for criminal proceedings against four judges.

JANUARY 3 UPDATE: Governor-elect Terry Branstad finally spoke out against impeaching the remaining Supreme Court justices. Click the link or scroll to the bottom of this post to read his comments.

Three attorneys who are challenging last month’s judicial retention elections today withdrew their request for an injunction to allow Iowa Supreme Court Chief Justice Marsha Ternus and Justices David Baker and Michael Streit to continue serving after December 31. The attorneys filed their lawsuit last week, saying the retention vote was illegal because the Iowa Constitution stipulates that judges “shall at such judicial election stand for retention in office on a separate ballot which shall submit to the question of whether such judge shall be retained in office […].” Lynda Waddington reports today that the lawsuit will go forward, but plaintiffs dropped their request to let Ternus, Baker and Streit continue to serve after learning that “the Iowa Judicial Branch and the justices removed from service were not in favor of it.”

A court will consider this lawsuit sometime next year. I believe it will go nowhere for reasons I discussed here. Iowa has been holding judicial retention elections in conjunction with general elections for nearly five decades. No one has ever demanded that voters be provided special ballots for the retention vote. IowaVoter points out that when Iowans approved the constitutional amendment on replacing judicial elections in 1962, lever machines rather than paper ballots were widely used. I share IowaVoter’s reading of the relevant passage in the constitution: it means that there must be a separate ballot line for each judge, so voters aren’t asked to retain or not retain the judges as a group.

Which do you think will get shot down first, Bleeding Heartland readers? This lawsuit challenging the legality of the retention vote, or statehouse Republicans’ efforts to impeach the remaining four Supreme Court justices?

Any comments about Iowa’s judicial system are welcome in this thread. I believe an impeachment spectacle during the 2011 legislative session will only make it harder for Governor-elect Terry Branstad to get lawmakers to pass the modest reform he favors (requiring partisan balance for judicial nominating commissions).

Fallout from last month’s vote against retaining Iowa Supreme Court Chief Justice Marsha Ternus and Justices Michael Streit and David Baker continues to make the news almost daily.

Follow me after the jump for links and analysis on the timetable for replacing Ternus, Streit and Baker, efforts to change Iowa’s system for choosing judges, political pressure on the remaining justices, and how the retention vote will affect the 2012 elections.

The Iowa Senate Democratic caucus on November 14 re-elected Mike Gronstal as majority leader and Jack Kibbie as Senate president. Five senators will serve as assistant majority leaders: Joe Bolkcom of Iowa City, Bill Dotzler of Waterloo, Wally Horn of Cedar Rapids, Amanda Ragan of Mason City, and Steve Sodders of State Center. Linn County Supervisor Brent Oleson got Iowa Republicans excited on Saturday by tweeting that Horn would challenge Gronstal, but according to this Des Moines Register report by Jennifer Jacobs, “No one mounted a challenge for either leadership role, several senators said.”

More Iowa Senate news is after the jump.

Senator Chuck Grassley will become ranking member of the Senate Judiciary Committee in January, Ed Tibbetts of the Quad-City Times reported on November 11. Grassley and Senator Jeff Sessions of Alabama made a deal in May 2009 to let Sessions be ranking member on Judiciary temporarily. The position became open when Arlen Specter switched to the Democratic Party, but Grassley (who is senior to Sessions) wanted to remain the top Republican on the Senate Finance Committee through the end of 2010. Sessions is now expected to become ranking Republican on the Senate Budget Committee. The GOP Senate caucus term-limits its committee chairs and ranking members.

Speaking to Tibbetts on November 10, Grassley said,

“I would hope to be doing roughly the same things on health care in the Judiciary Committee as I did in the Finance Committee,” he said.

Grassley has been a tenacious investigator of the Food and Drug Administration and the pharmaceutical industry. He also said he would remain active overseeing nonprofits.

Grassley said fraud-related issues are squarely within the Judiciary Committee’s jurisdiction.

Also, the New Hartford Republican has a history of casting a wide net in his oversight activities. In the 1980s, Grassley targeted waste in the Pentagon budget while he sat on a subcommittee of Judiciary, not a Defense-related panel.

In his new role, Grassley will be a more prominent figure in battles over confirming President Barack Obama’s judicial nominees as well.

Over in the U.S. House, Steve King (IA-05) is set to become chairman of the Judiciary Committee’s subcommittee on immigration. He has been ranking member on that subcommittee since 2007. John Deeth notes that a Hispanic Republican group based in the southwest is objecting due to King’s use of “defamatory language that is extremely offensive to Hispanics.” Good luck getting the House Republican caucus to care, even if Latino voters did swing last week’s elections to Democrats in Colorado, Nevada and California.

Judicial nominating commissions will soon begin evaluating possible replacements for Iowa Supreme Court Justices Marsha Ternus, Michael Streit and David Baker. The law gives the commissions 60 days to submit a short list of candidates for judgeships to the governor, which means soon to be former Governor Chet Culver could nominate justices before Governor-elect Terry Branstad is sworn in. Branstad said yesterday that he should appoint the new members of the high court:

“I think it would be inappropriate to have a governor that was just rejected by the voters try to rush through appointments to a court when the court was just rejected as well. I think we need to really sit down and think this thing through in a really careful way,” Branstad says. “But really my focus is on jobs. That’s why the people of Iowa elected me as governor and that’s where I’m going to put my focus in the days ahead.”

Culver has not promised to let Branstad appoint the new justices. A November 3 statement from the governor’s office said only this:

“I am reviewing the matter carefully to ensure the judicial selection process that is utilized now is consistent with the Iowa Constitution, with Iowa law, and with past practices used in the course of both Democratic and Republican administrations in instances when multiple vacancies in our appellate courts have been created simultaneously.”

Meanwhile, Republican Party of Iowa Chairman Matt Strawn says it would be “unconscionable” for Culver “to thumb your finger in the eyes of the voters who just repudiated those Supreme Court Justices and, quite frankly, repudiated you and the one party, Democrat rule in Des Moines.” Strawn also called for “a further discussion too on how we change the way judges are nominated and selected in this state as well, because I think that too is part of the problem.” Getting rid of Iowa’s judicial nominating commissions would require a constitutional amendment, but a new law could make minor changes. For instance, Branstad has endorsed efforts to require partisan balance on the judicial nominating commissions.

The Supreme Court has already heard some oral arguments in this year’s caseload. It’s not clear whether the four remaining justices will issue rulings on those cases or rehear the oral arguments once replacements for Ternus, Streit and Baker have been selected.

The November 4 edition of the Des Moines Register published a map showing the judicial retention vote by Iowa county. There was a strong urban/rural split in the voting. In seven counties, more than 70 percent of votes cast on retention said no to all three judges. In 48 counties, the no votes on retention totaled between 60 and 70 percent. In 34 counties, the no votes totaled between 50 and 60 percent. In Clinton County, Streit and Ternus received a majority of votes for retention, but the yes votes for Baker fell below 50 percent. All three judges received a majority of yes votes in the remaining nine counties: Winneshiek (Decorah area), Black Hawk (Waterloo/Cedar Falls), Story (Ames), Polk (Des Moines), Linn (Cedar Rapids), Johnson (Iowa City), Muscatine, Scott (Quad Cities), and Jefferson (Fairfield area). I will update this post with a link to the map if I find it on the Register’s website.

UPDATE: Thanks to Bleeding Heartland user ragbrai08 for posting the map in the comments below. I’ve posted it after the jump as well.

The retention election results for Iowa Supreme Court justices were a particularly low point on a generally dismal night. Never before had Iowans failed to retain a Supreme Court justice. Thanks to one unpopular ruling, unofficial results show Chief Justice Marsha Ternus received 45.0 percent yes votes and 55.0 percent no votes. Justice David Baker received 45.75 percent yes and 54.25 percent no. Justice Michael Streit received 45.6 percent yes and 54.4 percent no. Ternus spent 17 years on the high court, four of them as chief justice. Streit served for nine years and Baker just two.

It was bad luck that so many justices came up for retention in the first year following the Varnum v Brien ruling. The Des Moines Register reported that only Supreme Court Justice David Wiggins is up for retention in 2012, and the other three current justices won’t face the voters until 2016. The last group includes Justice Mark Cady, who wrote the decision striking down Iowa’s Defense of Marriage Act.

All lower-court Iowa judges appear to have been retained, including three who were targeted by some social conservatives. In Polk County, fifth circuit District Court Judge Robert Hanson received 66.34 percent yes votes, and District Court Judge Scott Rosenberg received 68.84 percent yes votes. Robocalls paid for by a conservative group urged Polk County residents to reject both judges. Hanson issued the lower-court ruling in Varnum v Brien in August 2007. Rosenberg signed a waiver allowing two men to marry after Hanson’s decision was announced, before an appeal put a stay on that decision.

In Sioux City, third circuit District Court Judge Jeffrey Neary received 58.5 percent yes votes. Conservatives tried and failed to oust him in 2004 and again this year, because in 2003 he granted a divorce to a lesbian couple who had a civil union from Vermont. At the time, Neary didn’t realize both parties seeking that divorce were women.

The judicial retention vote doesn’t affect same-sex couples’ marriage rights in Iowa. Voters rejected an initiative to call a constitutional convention, so the only way to overturn marriage equality would be to pass a constitutional amendment through the normal path. The new Republican majority in the Iowa House will approve a constitutional amendment restricting marriage to one man and one woman. Senate Majority Leader Mike Gronstal may or may not be able to keep that amendment from passing the Iowa Senate. If the legislature approves a marriage amendment in 2011 or 2012, a separately elected Iowa House and Senate would have to approve it again in 2013 or 2014 before it could appear on the 2014 general election ballot. At that point, the amendment would require a simple majority of yes votes statewide to be added to the Iowa Constitution.

Share any relevant thoughts in this thread.

The latest Iowa poll for the Des Moines Register finds Republicans leading the gubernatorial and U.S. Senate races and Iowa’s Supreme Court justices likely to be ousted. Selzer and Co sampled 805 likely Iowa voters between October 26 and 29.

Terry Branstad leads Governor Chet Culver 50 percent to 38 percent. That’s down from a 19-point lead in the Register’s September poll, but still a comfortable advantage. Culver’s campaign released an internal poll last week showing a much tighter race, with Branstad ahead 46-40. I had assumed Republican internal polling also showed Culver gaining, because the Cook Political Report just shifted its rating on the Iowa’s governor’s race from safe Republican to leaning Republican. I don’t think they would make that rating change if private polling showed Branstad at 50 percent with a double-digit lead.

Kathie Obradovich blogged tonight that Culver leads by 9 percent among respondents who had already voted, even though he trails by 12 percent among the whole sample. The Register’s other piece on the new poll refers to “the electorate’s conservative profile” but gives no details about the partisan breakdown of the sample. I will update this post if more details emerge about the poll’s demographics.

Selzer and Co found Senator Chuck Grassley leading Roxanne Conlin 61 percent to 30 percent, virtually the same margin as in the Register’s September Iowa poll.

The news for Iowa Supreme Court justices wasn’t much better:

A third of likely Iowa voters say they will vote to retain Chief Justice Marsha Ternus and Justices David Baker and Michael Streit. Thirty-seven percent say they will vote to remove all three. Ten percent plan to retain some. The rest either don’t plan to vote on judicial retention or haven’t made up their minds.

I thought it was foolish for the anti-retention groups to feature Representative Steve King in their radio commercials, but if voters throw out the judges, King will be able to take some credit.

Obradovich didn’t give poll numbers for the Congressional races but noted, “Mariannette Miller-Meeks appears to have the best chance of any of the GOP challengers to unseat an incumbent Democrat.” That would be quite an achievement, since Iowa’s second district has the strongest Democratic lean. However, Miller-Meeks has been campaigning hard, and the Democratic Congressional Campaign Committee’s latest commercial against her is atrocious. It wouldn’t surprise me if that ad drives more voters toward Miller-Meeks than toward incumbent Dave Loebsack.

Iowa Democrats need to get out the vote and hope the Register’s poll contains faulty assumptions about who will turn out on Tuesday.

UPDATE: One positive sign for Loebsack is the large lead Democrats have in early voting in the IA-02 counties (pdf file).

SECOND UPDATE: The best news in the poll: Tom Miller 45, Brenna Findley 34.

Findley, a 34-year-old Dexter lawyer and tea party favorite, has spent more on advertising than Miller, who was first elected in 1978. However, Miller leads Findley among independent voters by 20 percentage points and nets a larger share of support from Democrats than Findley receives from Republicans.

The big purple Judge Bus completed its Iowa tour on October 28, but the groups urging Iowans to oust three Supreme Court justices aren’t winding down their voter persuasion efforts. Representative Steve King has recorded a radio commercial asking Iowans to “send a message against judicial arrogance.”

The ad script is after the jump, along with news on the Judge Bus and the “Homegrown Justice” events, which called on Iowans to retain all the judges on the ballot.

Catching up on some news from last week: on October 20 U.S. District Court Judge Robert Pratt denied a preliminary injunction request against Iowa’s new campaign finance disclosure requirements for corporations. The Iowa Right to Life corporation filed a lawsuit challenging the new law in September, claiming it places unconstitutional restrictions on corporate political speech.

More background on the law in question and Iowa Right to Life’s lawsuit are after the jump.  

On Monday, Family Research Council Action and the National Organization for Marriage will launch a “Judge Bus Tour” to campaign against retaining Iowa Supreme Court justices Marsha Ternus, Michael Streit and David Baker. Organizers will take their bus through 45 Iowa counties, stopping at 20 planned rallies. Featured speakers at the rallies will include nationally-known heroes on the religious right: Family Research Council Action President Tony Perkins, National Organization for Marriage President Brian Brown, Representative Steve King of Iowa’s fifth Congressional district, and former Senator Rick Santorum of Pennsylvania.

My hunch is the big purple judge-hating bus will drive more votes toward retaining than ousting the Supreme Court justices.

The Iowa for Freedom coalition launched another statewide television commercial today urging Iowans to vote against retaining Supreme Court justices Marsha Ternus, Michael Streit and David Baker. The concept and images strongly resemble the coalition’s first tv ad on the subject, which started running in mid-September.

Video, transcript and comments are after the jump.

Anyone go to the Iowa Democratic Party’s Jefferson-Jackson Dinner last night? If you missed it, like I did, Kay Henderson posted a good live-blog at Radio Iowa. Keynote speaker Ed Rendell, the governor of Pennsylvania, called plans to cut preschool funding “dumb and dumber”:

“In a year when there are some of the worst and craziest ideas are being put forth by Republican candidates, perhaps the worst in the country is cutting pre-K here in Iowa,” Rendell said.

Newspaper endorsements are starting to come in. The Cedar Rapids Gazette endorsed Branstad for governor today. The Des Moines Register ran a full-page editorial urging readers to retain the Iowa Supreme Court justices, calling the retention vote “by far the most important question in this year’s election.”

On a related note, former Republican Governor Bob Ray recorded a radio commercial for Fair Courts for Us, which asks Iowans to turn over the ballot and vote “yes, yes, and yes to retain the Iowa Supreme Court.”

This is an open thread. What’s on your mind this weekend, Bleeding Heartland readers?  

Former Republican Governor Bob Ray is co-chairing a new group that will urge Iowans to retain three Supreme Court justices who are on the ballot:

The group, Fair Courts for US, plans to stage a direct mail and media advertising campaign as part of a statewide grassroots answer to several conservative advocacy groups that are urging Iowans to vote against retention of Chief Justice Marsha Ternus as well as Justices Michael Streit and David Baker.

Three of the four co-chairs are prominent Republicans: Ray, who was governor from 1969 to 1983, Art Neu, who was lieutenant governor from 1973 to 1979, and Sioux City attorney Dan Moore, a past-president of the Iowa State Bar Association and former secretary and treasurer of Bob Vander Plaats’ gubernatorial campaign. The fourth co-chair is Democrat Christie Vilsack, who was first lady from 1999 to 2007.

[Moore] said there are other avenues available to those who disagree with a court decision, such as appealing to a higher court or amending the state constitution, rather than targeting a judge or justice up for retention based just on one decision.

“The courts are accountable to the constitution and to the rule of law and not politicians. It’s not a popularity contest that’s run here,” Moore said. “(In) our system of justice, courts must look at the facts. They must apply the laws and make a determination for an outcome of a case. Our citizens deserve the very best courts that they can have access to and that’s what they have today.” […]

“Our system is far and away superior to those states where judges are elected every four years. That’s why Fair Courts For Us is urging Iowans to take a stand and vote ‘yes’ to retain the justices and preserve our system of jurisprudence,” Ray said.

I wish this effort every success, but I don’t know how much grassroots work can be accomplished with less than three weeks left before the election. According to the Secretary of State’s Office, nearly 250,000 Iowans had requested absentee ballots as of October 14, and nearly 120,000 ballots had already been returned.

I hope Fair Courts for Us has television and radio commercials featuring Ray ready to launch as soon as possible. Ray commands tremendous respect among Iowans who remember him as governor, and older Iowans are least likely to support the Supreme Court’s Varnum v Brien decision on marriage. Backers of the Iowa for Freedom effort to oust the judges have been advertising statewide for a month already and have spent hundreds of thousands of dollars on the campaign.

Two other groups are trying to educate the public about the benefits of Iowa’s current judicial system: the Justice, Not Politics coalition and Iowan for Fair & Impartial Courts. However, those advocates are not explicitly urging Iowans to vote yes on retaining Ternus, Streit and Baker.

UPDATE: Fair Courts for Us started running this 60-second radio commercial in seven major Iowa markets on October 15. My transcript:

Sound of football game, tackle, referee’s whistle, sports announcer’s voice: And the flags are flying. Looks like a questionable call.

Referee’s voice: Unnecessary roughness.

Sports announcer: I think we’re gonna see some fans calling for these refs’ jobs.

Bob Ray: Listen, we’ll never agree with every call, but you shouldn’t fire the good referees over just one call. The same is true for the Iowa Supreme Court. I’m Bob Ray, a Republican and former Iowa governor. The Iowa Supreme Court has been making solid judgments over the years. The court protected Iowa families by requiring convicted sex offenders to live at least 2,000 feet away from a school or child care center, protected Iowa seniors, and protected our individual property rights. Please join me, Bob Ray, in turning over the ballot and voting yes, yes, and yes to retain the Iowa Supreme Court. There’s enough politics out there. We don’t need it in our courts.

Announcer: Paid for by Fair Courts for Us.

I wouldn’t have picked Iowa’s ineffective sex-offender residency restrictions as the best example of how the Supreme Court has worked for Iowans. This law clusters sex offenders in a few areas, and “many of those who work most closely with sex offenders and say restrictions are not working and public safety would benefit from change.” That’s not to say the Supreme Court’s decision on this law was incorrect (similar laws have been upheld in other states), but Iowans weren’t “protected” by the law.

In any event, this commercial is obviously targeting a conservative audience who might be inclined to vote against the judges, as well as senior citizens who probably remember Ray as governor.  

Since last spring, I’ve thought conservatives who denied the Iowa Supreme Court’s authority to rule on marriage didn’t grasp the judicial review concept. But Reverend Cary K. Gordon of the Cornerstone World Outreach church in Sioux City proved me wrong with his prayer:

“Dear God, please allow the IRS to attack my church, so I can take them all the way to the U.S. Supreme Court.”

Gordon says he’ll defy federal tax laws this month by urging his congregation to vote against the retention of three Supreme Court justices because of the ruling that effectively legalized same-sex marriage in Iowa. He’s asked 1,000 church leaders to join him, prompting a complaint to the Internal Revenue Service.

Churches and other nonprofit organizations are prohibited from directly advocating for or against candidates. Their tax-exempt status is at risk if they do, although the IRS rarely goes so far.

Gordon is among church leaders who feel the restriction is unconstitutional. He apparently sees no irony in seeking court protection.

Gordon has been recruiting Iowa clergy to preach a “no” vote on judicial retention for the past month. He thinks he has a strong case on First Amendment grounds. There’s plenty of legal precedent for requiring tax-exempt organizations to refrain from certain kinds of political advocacy. But I’m more amused by Gordon’s desire to have the courts strike down part of a tax code adopted by the people’s representatives. How is that different from the Iowa Supreme Court striking down a key provision of Iowa’s Defense of Marriage Act?

Supreme Court Chief Justice Marsha Ternus, one of three high court judges on the ballot this year, noted Gordon’s hypocrisy in a speech at Iowa State University yesterday:

“The pastor claims this law is unconstitutional, and has vowed to challenge the law – where? In the courts,” she said. “It seems the pastor is quite comfortable arguing the will of the people, as expressed in this federal law, can be declared void in the courts.”

Ternus also asserted that activists urging a no vote on retention “are blinded by their own ideology.”

“They simply refuse to accept that an impartial, legally sound and fair reading of the law can lead to an unpopular decision.” […]

One of the main arguments for those wishing to oust the justices is centered around the idea that the justices did not have the authority to overturn the marriage law. As she extensively points out, judicial review is entrenched in both the American and Iowan judicial tradition, seeing support from the 1787 Constitutional Convention and from the authors of the Iowa Constitution. […]

Critics have also said justices subverted the will of the people by overturning a state law that is supported by a majority of Iowans. Ternus refutes this claim and other claims of judicial activism by saying the court fulfilled its constitutional role by acting in the interests of protecting constitutionally protected rights.

“When ruling that a statute violates the constitution the court does not usurp the powers of the other branches of government, the court exercises its own authority,” she said. “The court is not legislating from the bench, it is resolving a dispute between the parties by declaring the legislature’s act unenforceable because it violates the will of the people as expressed in their constitution.”

I’m concerned about the retention vote, partly because the judges’ opponents are spending so much money, and partly because about 25 percent of voters typically vote against retention even in a year without controversy. Share any thoughts about these election in this thread.

President Barack Obama supposedly wants to end the ban on gays and lesbians openly serving in the U.S. military. His administration has backed a legislative compromise that would probably lead to the repeal of Don’t Ask, Don’t Tell next year. However, the votes aren’t there in the Senate to attach that provision to this year’s defense authorization act. The Senate will consider the bill again after the November election, but I doubt senators would vote to lift the ban on gays in the military during a lame-duck session. Next year the issue will be off the table in a House and Senate with many more Republican votes, and possibly Republican majorities.

Yesterday a U.S. District Court judge in California gave Obama an easy way to keep his promise on ending the ban:  

U.S. District Judge Virginia Phillips’ permanent worldwide injunction — praised by gay rights organizations — orders the military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under the “don’t ask, don’t tell” policy. […]

In her ruling Tuesday, Phillips stated the policy infringes on the rights of military personnel. “Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers’ rights or to compensate them for violation of their rights,” the judge wrote.

Now the question is whether Obama will have his administration appeal this ruling:

President Barack Obama has backed a Democratic effort in Congress to repeal the law, rather than in an executive order or in court.

But U.S. District Judge Virginia Phillips’ injunction leaves the administration with a choice: Continue defending a law it opposes with an appeal, or do nothing, let the policy be overturned, and add an explosive issue to a midterm election with Republicans poised to make major gains.[…]

If the government does not appeal, the injunction cannot be reversed and would remain in effect. If it does, it can seek a temporary freeze, or stay, of her ruling. An appeal would go to the U.S. Court of Appeals for the 9th Circuit. Either side could then take it to the U.S. Supreme Court.

The Pentagon did not immediately comment, and a Justice Department spokeswoman said the government was reviewing the decision. Meanwhile, a group of 19 Democrat senators signed a letter sent to U.S. Attorney General Eric Holder urging him to let the injunction stand.

As of yesterday, Senator Tom Harkin was not among the Democrats who co-signed that letter. I am seeking comment from his office on whether he supports a Justice Department appeal of Judge Phillips’ ruling.

At about 6:20 pm today I received a robocall informing me about one of the “most important” elections this year, which is “buried at the bottom of your ballot.” The recorded female voice told me that voting no on the three Iowa Supreme Court judges would send a “clear message,” since the judges had ignored the “overwhelming” will of the people, blah blah blah. Toward the end the caller again urged me to vote no on retention, adding a populist closing line: “This time, you get to be the judge.”

I was taking notes as fast as I could, ready to write down who paid for the call and the phone number of the sponsor. However, the call ended without giving any of that information. Using *69, I learned that the source of my last incoming call was 515-418-9339, but when I pressed 1 to contact that number, I heard, “The number called cannot be reached.” Subsequent attempts to dial 515-418-9339 didn’t produce a ring, busy signal or any answering machine message.

In federal elections, groups making automated calls must “identify themselves at the beginning of the call and provide a call-back number.” Although most robocalls I’ve received do provide that information, Iowa statute does not require it, to my knowledge.

I wonder why those campaigning against the Iowa Supreme Court judges are reluctant to publicize who is bankrolling their campaign activities. Shouldn’t the sponsor be “loud and proud” about what they’re doing? Perhaps they don’t want to call attention to the vast amounts of out-of-state money trying to influence the retention vote. The Washington, DC-based National Organization for Marriage and the Mississippi-based American Family Association Action are spending hundreds of thousands of dollars urging Iowans to vote no on retention.

Please share any relevant thoughts, and post a comment or contact me off-line if you’ve received the same robocall.

The latest Des Moines Register poll by Selzer and Co finds three Iowa Supreme Court justices are in danger of not being retained this November. The Register’s Monday edition contains details from that portion of the poll, which surveyed 550 likely voters and has a margin of error of plus or minus 4.2 percent.

Among all likely voters, just 31 percent plan to vote to retain all three Supreme Court justices, 12 percent will vote to retain some of them, 29 percent will vote against retaining all of them, 16 percent will probably not fill out that part of the ballot, and 12 percent were unsure. Among respondents who planned to vote on the retentions, 44 percent said they would vote to retain all the Supreme Court judges, 16 percent said they would vote to retain some, and 40 percent will vote to remove all three.

Click here for the Register’s graph showing the breakdown among certain demographic groups (party affiliation, income, union household and born again Christian). Grant Schulte summarized the findings:

Retention supporters and opponents split largely on party lines. Voters most likely to retain all the justices were Democrats, women, younger Iowans, union households, and those with high incomes and college degrees.

Senior citizens, Republicans, men, tea party supporters, born-again Christians, low-income voters and those with only a high school education were more likely to vote “no” to all the justices, the poll found.

I had feared worse numbers, since the Register’s poll was in the field September 19-22, not long after television commercials making the case against retention started running statewide.

Schulte’s article notes,

The retention election could hinge on which side mobilizes the most down-ticket voters. A Register analysis of voting records in the past two non-presidential elections shows that only 60 percent of Iowa voters answered the retention questions for justices and appeals-court judges.

The judges don’t plan to campaign for themselves. Groups backing retention won’t be able to match the advertising budgets of groups on the religious right. I doubt they will reach as many voters as the pastors who plan to preach directly against retaining the judges either.

Ousting three Supreme Court wouldn’t change Iowa’s judicial system right away, but it would give momentum to those who want to replace merit-based selection with a more politicized process. Please remind your friends to fill out the whole ballot and vote yes on the judges up for retention.

Iowa Supreme Court Chief Justice Marsha Ternus confirmed on September 30 that she and her colleagues will not wage a campaign urging Iowans to retain them in office.

Ternus said she and justices David Baker and Michael Streit don’t want to set an example for judges by campaigning and raising money.

“How would you feel, as a litigant, to appear in court and know that the opposing party’s attorney gave money to the judge’s re-election campaign and your attorney didn’t? Is that the kind of system Iowans want? I just hope they think about it. This is way more important than whether any one judge is retained or not,” she said.

I’ve talked to some people who are frustrated the Supreme Court justices aren’t more actively defending themselves and their records. I admire them for honoring the principle that judges should not engage in election-style campaigns, even when their own jobs are on the line.

Former Republican gubernatorial candidate Bob Vander Plaats is heading a campaign to oust the judges. His Iowa for Freedom organization has massive financial backing from the American Family Association and the National Organization for Marriage. Hundreds of thousands of dollars have already been spent on a statewide television commercial and radio advertising urging Iowans to vote no on retaining Ternus, Streit and Baker.

The Justice, Not Politics coalition formed recently to defend the judges and our current judicial system, but they won’t be able to match the conservative groups’ spending against the judges. The Iowa State Bar Association has created Iowans for Fair and Impartial Courts, but as a pending 501(c) organization, that group cannot explicitly urge Iowans to vote yes on retaining the Supreme Court justices.

Please remind your friends and relatives to turn the ballot over and vote yes on retaining the judges listed. All of them “are well qualified to remain as judges” according to the Iowa State Bar Association’s survey of Iowa attorneys. Survey results were released on October 1. All 74 judges up for retention this year received “high marks” for “professionalism and demeanor” on the bench. The Des Moines Register listed the bar association’s survey results for the three Supreme Court justices and all Polk County judges on the ballot.

All judges had more than 70 percent support from the attorneys, but Ternus’ retention rating (72 percent) was lower than the ratings for Streit and Baker. In general, women judges receive lower retention ratings from the legal community than men on the bench. Ternus also made the news in the summer of 2009 when seven 19-year-olds, including her son, were arrested for drinking at a party outside her home. Her husband was charged with interference with official acts as Polk County sheriff’s deputies broke up that party, but the charge was later amended to harassment of a public official.

UPDATE: Saturday’s Des Moines Register offered another possible explanation for Ternus’ slightly lower rating:

But the vote also follows a tight budget year for the courts. Ternus, who issues administrative orders as part of her duties, required clerk-of-court offices to reduce their public hours, and imposed courthouse closure days as a cost-cutting measure. Some court reporters were laid off.

“The chief justice is the person who addresses issues such as dealing with court’s budget, or administrative issues in the court,” Knutson said. “Certainly, she had to be the public face on some of those hard decisions.”

At about 4:00 pm today a woman from Lawrence Research called with a survey on the upcoming elections. As always when I receive a political phone call, I didn’t hang up and took as many notes as possible on the poll. Judging from the question wordings, this was a message-testing survey commissioned by a group trying to oust the three Iowa Supreme Court justices who will be on the ballot this November.

The Lawrence Research polling firm is run by Gary Lawrence, who was active in California’s Prop 8 campaign against same-sex marriage. His firm recently conducted a poll purporting to show that Minnesotans want a governor who opposes same-sex marriage rights. The Minnesota Family Council and National Organization for Marriage publicized that poll.

I assume the American Family Association and/or the National Organization for Marriage commissioned the poll for which I was a respondent today. Those groups are lavishly funding the “Iowa for Freedom” effort to oust the judges. Television commercials urging a no vote on retention began running statewide two and a half weeks ago.

If this poll shows that Iowans are poised to vote no on retaining the Supreme Court justices, whoever commissioned it will probably announce the results. I’ll assume the numbers were good for the judges if I don’t see an Iowa for Freedom press release about the poll in the coming weeks.

After the jump I’ve posted as many details as I could about the survey questions.

Speaking of the retention elections, get a load of this brazen recruiting effort by a Sioux City church: “Pastors who join this effort are asked to commit to confront the injustice and ungodly decisions of the Iowa Supreme Court by boldly calling upon their flocks to ‘vote no on judicial retention’ for the three consecutive Sundays prior to Election Day.”