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.”  

More than 30 organization and several dozen “community leaders” have formed a new coalition called Justice, Not Politics. Former Lieutenant Governors Joy Corning (a Republican) and Sally Pederson (a Democrat) are co-chairing the coalition, which will counter the well-funded campaign to oust three Iowa Supreme Court justices up for retention this year. Pederson and Corning spoke to Radio Iowa’s Kay Henderson on September 27:

Pederson charges that Iowa for Freedom – the group now headed by former Republican gubernatorial candidate Bob Vander Plaats – is trying to “hijack” the courts and using a quarter of a million dollars in out-of-state money to do it. “There is no Iowa for Freedom organization that you can write a check to. It is a project of the American Family Association out of Tupelo, Mississippi, and they don’t have the interests of Iowans at heart. They have their own agenda,” Pederson says. “The American Family Association is really a extremely outrageous, you know, right-wing group.”

The leaders of Iowa For Freedom say they’ll continue to educate Iowans about their right to “hold the court accountable” for the gay marriage ruling and they accuse Pederson and Corning of “scare tactics.”

Corning says judges shouldn’t be subjected to “political retribution” and Corning argues the three justices up for a retention vote this fall have met the right standard by showing an ability to uphold the law “fairly and consistently.”

“There is much work to be done to fight extremists who want to insert their narrow special interests into the one branch of government that should be free from politics,” Corning says.

Click here to view a list of Justice, Not Politics supporters. Many churches and religious organizations have signed on, and lots of the “community leaders” are clergy. I am not aware of any current Republican elected official or candidate who has spoken out for retaining the justices, but in addition to Corning, two other prominent former Republican politicians have joined the effort: Ambassador and former Iowa Senate President Mary Kramer, and former State Senator Maggie Tinsman.

Iowa’s judicial system is one of the finest in the country. Iowa’s merit selection and retention process keeps politics and campaign money out of our courts, safeguarding its fairness and impartiality. To keep it that way, Iowans from all political spectrums should resist efforts by one extremist group from Mississippi who are funding an effort to politicize our courts. If politics and campaign money are allowed into the courts, justice will be for sale.

Why a Coalition?

Groups from across the state are working together to counter the effort of extremists from hijacking Iowa’s courts. Justice, Not Politics is a broad based, nonpartisan coalition of organizations and Iowans across the political spectrum —- progressive to conservative; Republicans, Independents and Democrats —- all who are committed to protecting Iowa’s courts and our system of merit selection and retention.

The Iowa State Bar Association created Iowans for Fair & Impartial Courts earlier this year, but that pending 501(c)3 group cannot engage in direct political advocacy. Iowans for Fair & Impartial Courts has raised money for a public education campaign about the benefits of Iowa’s merit selection system for judges, but it cannot explicitly urge citizens to vote yes on retaining the Supreme Court justices.

Republican gubernatorial candidate Terry Branstad has tried to remain neutral on this issue, stating that “people should vote their conscience” on the judges. But as three law school deans wrote in this guest editorial for the Des Moines Register, the retention elections were not intended to be referenda on specific court rulings:

The merit selection process includes periodic votes on judges. Every eight years each member of the Supreme Court appears on the ballot with the simple question: Should this individual be retained for another term in office? The retention vote was designed for a very limited purpose, to provide a mechanism to remove a judge who was unfit for office, for example, because of corruption such as bribery, other unlawful conduct, or misconduct.

Those seeking to remove the three Supreme Court justices fail to recognize the substantial harm they will do to Iowa’s judicial system if they succeed. It would do serious harm to the rule of law in Iowa and the fair and impartial administration of justice if judges are removed from office through campaigns of political opponents because of the results reached in particular cases. It would be an open invitation to well-funded interests to band together and retaliate against judges. Inevitably, decisions would appear to be influenced by politics and ideology, not by the law and evidence in a case.

The three justices under attack have a record of integrity, competency and distinguished public service, and a “yes” vote on their retention is merited by the facts.

The Iowa Catholic Conference this week endorsed a ballot initiative calling for a constitutional convention, which church leaders view as a path to banning same-sex marriages. Democrats have blocked several efforts to bring a marriage amendment to the floor of the Iowa House and Senate.

More details on Catholic advocacy against marriage equality are after the jump.  

I’m putting up this thread early because of the Jewish holiday Yom Kippur, which starts at sundown Friday evening. While I’m in services, a large crowd will attend the Republican Party of Iowa’s Reagan Dinner in Des Moines. Representatives Steve “10 Worst” King, Tom Latham, gubernatorial nominee Terry Branstad, Senator Chuck Grassley, and Iowa GOP Chairman Matt Strawn will speak before the keynote address by former Alaska Governor Sarah Palin.

C-SPAN will televise the event. Political junkies will watch to see how Palin addresses the activists whose support she’ll need if she runs for president in 2012, as expected. An early poll commissioned by The Iowa Republican blog found Palin in fourth place among Iowa Republicans this summer, behind Mike Hucakbee, Mitt Romney and Newt Gingrich. Some supporters of Bob Vander Plaats for governor have hard feelings about her substance-free endorsement of Branstad shortly before the June primary. Will she placate them tonight by enthusiastically backing the effort to remove Iowa Supreme Court judges from office this November?

I encourage Bleeding Heartland readers who watch the Reagan Dinner to post your impressions here. Please refrain from sexist insults when talking about Palin.

My only prediction is that no speaker will acknowledge how much Ronald Reagan raised taxes as president and as governor of California.

This is an open thread, so share anything on your mind this weekend.

UPDATE: Apparently Palin praised Terry Branstad’s record on supporting special education. The Iowa Democratic Party set the record straight in a statement I’ve posted after the jump.

Ben Smith summarized Palin’s message as defending the Republican insurgency. She still hasn’t explained why Iowa is one of the few places where she backed the establishment candidate (Branstad) over the more conservative alternative.

Jonathan Martin wondered why Grassley talked about Harry Reid and Nancy Pelosi so much. He’s been doing that for a while–for example, during his joint appearance with Roxanne Conlin on Iowa Public Television.

Iowa for Freedom, the group seeking to oust three Iowa Supreme Court justices this November, began running a statewide television commercial on Monday.

The ad echoes language Iowa for Freedom chair Bob Vander Plaats used during his gubernatorial campaign, and it reflects the same failure to understand the judicial review process.

The video and transcript are after the jump, along with an update on the counter-effort to protect judicial independence in Iowa.

Retired U.S. Supreme Court Justice Sandra Day O’Connor urged a large crowd in Des Moines today to safeguard judicial independence in Iowa:

“We have to address the pressures that are being applied to that one safe place, the courtroom,” O’Connor said. “We have to have a place where judges are not subject to outright retaliation for their judicial decisions. That’s the concept. Sure they can be ousted and that’s part of the system, but what the framers of our federal constitution tried to do was establish a system of judicial selection where the judges would not be subject to retaliation by the other branches for their judicial actions.”

O’Connor is in Iowa at the invitation of the Iowa State Bar Association, which was key in forming the group Iowans for Fair and Impartial Courts. The group’s efforts come as another group, Iowa for Freedom led by former Republican gubernatorial candidate Bob Vander Plaats, is working to oust three Iowa Supreme Court justices who were part of the unanimous decision in Varnum v. Brien legalizing same-sex marriages. […]

O’Connor said today there are threats to the court system by about 20 states that still have openly partisan elections to select judges with vast amounts of campaign contributions coming into the courtrooms. She said it’s eroding the faith in the court system. She urged Iowa to stay the course. “Iowa is probably going through a stressful time now,” she said. “Just don’t throw out the system because at times it’s under stress. And I know you won’t do that.”

O’Connor has experience with partisan politics as well as judicial elections. She was a Republican leader in the Arizona State Senate before being elected as an Arizona judge. Then Governor Bruce Babbitt appointed her to the state’s court of appeals before President Ronald Reagan nominated her for the U.S. Supreme Court.

The Republican Party of Iowa isn’t taking a leading role in ousting the three Supreme Court judges who are up for retention this November. They’ve left that battle to interest groups on the religious right, which plan to spend hundreds of thousands of dollars on the campaign. Behind the scenes, the Republican Governors Association is also reportedly funding Vander Plaats’ new vehicle, Iowans for Freedom.

Many Republican attorneys and business owners oppose the campaign to punish judges for making an unpopular decision. But to my knowledge, not a single Iowa Republican office-holder or candidate has spoken out for retaining the Supreme Court judges and preserving our current judicial nominating system. I’ve seen many Republican candidates call for ousting the judges and returning to judicial elections. Gubernatorial nominee Terry Branstad is nominally staying neutral, declaring the retention vote “an issue on which people need to decide for themselves” and “vote their conscience.”

What a shame that the Iowa Republican tent isn’t large enough to accommodate politicians who respect our judicial system enough to openly defend its independence.  

It’s been months since we’ve had new public nonpartisan polling of Iowa general election matchups, but three Republican polls have come out in the last ten days. None of them hold good news for Iowa Democrats.

After the jump I summarize results from statewide polls done by Rasmussen Reports and Voter/Consumer Research for The Iowa Republican blog, as well as a Victory Enterprises poll of Iowa’s third Congressional district race.

Bob Vander Plaats announced at a press conference today that he will not run for governor as an independent but will lead a public campaign against retaining the three Iowa Supreme Court justices whose names are on the ballot this November. Vander Plaats didn’t say who will fund the campaign, but promised more details on his “grassroots” effort next week. James Lynch reported yesterday that the Republican Governors Association will fund Vander Plaats’ crusade, which RGA officials consider “a model to be duplicated in other states.”

It’s been obvious for weeks that Vander Plaats wasn’t planning an independent bid for governor. The only question was what kind of face-saving deal would be struck between the bitter Republican primary rivals. The rumor mill suggested Vander Plaats might endorse Branstad in exchange for a promised future job. Instead, we have a different truce: Vander Plaats formally stands true to his principles by not endorsing Branstad. In return, the RGA (Branstad’s largest campaign donor by far) will pay for Vander Plaats’ revenge mission against Iowa judges.

Branstad has avoided publicly urging Iowans to vote against retaining the Supreme Court justices, and he didn’t have the guts today to take a stand for or against unseating them over a political dispute. In a written statement, Branstad said, “This is an issue on which Bob has often spoke with great passion and I understand his desire to pursue this path.”

How different from the Branstad of May 2009, who said “I do respect the existence of the separation of powers” when asked whether he regretted appointing two of the current justices, including Mark Cady, author of the Varnum v Brien decision.

The old Branstad wasn’t planning to run for governor again. The new Branstad doesn’t mind exploiting resentment over same-sex marriage for his own political gain. If that ends the careers of three good judges while elevating demagogues who don’t understand judicial review, so be it. Branstad appointee and Chief Justice Marsha Ternus has said this year’s retention elections will test Iowans’ commitment to an impartial judiciary. Branstad won’t join the right side in this fight.

On the contrary, Branstad has endorsed changing Iowa’s highly-regarded merit-based system for selecting judges. He has an interest in creating vacancies he could fill if elected governor, and he would rather pander to the religious right than allow judicial selection commissions to keep doing the job they’ve been doing for almost four decades. Some Iowa Republicans have advocated bringing back judicial elections or extremely stupid new restrictions on judicial deliberations. Branstad should know better than to play with fire on this issue.

Iowa House and Senate Republicans are probably overjoyed by today’s news. Vander Plaats will be working to turn out social conservatives who might not be thrilled with the party’s nominee for governor. That has to help GOP candidates in some of the battleground legislative districts. On the other hand, moderates may be turned off by the campaign against the judges. A Des Moines Register poll of likely Iowa Republican primary voters taken in June by Selzer and Associates found that 35 percent of respondents said some Iowans had “overreacted” to the gay marriage issue. The same survey found that 45 percent of likely Republican primary voters were against voting to remove Supreme Court judges because of their decision on marriage.

I’m concerned about the retention elections, because the judges are unable to campaign on their own behalf. Those who support judicial independence, such as the State Bar Association, are unlikely to match spending against the judges by conservative groups and the Republican Governors Association. Fortunately, Governor Chet Culver made his position loud and clear today:

“I support Iowa’s Supreme Court justices and more importantly, I support our judicial nomination and appointment process as it stands today.

“Iowa is known for having the fairest judge selection system in the country. We oppose efforts to make choosing our judges more political, more ideological.

“Terry Branstad and his running mate Kim Reynolds have made it clear that they want to change our system. Branstad has gone so far as to highlight Reynolds’s support for changing the state’s constitution, allowing the governor to reject all nominees sent by the judicial nominating committee, requiring the committee to send names again and again until the governor finds an appointee that supports a certain political agenda.

“This campaign is about the future of our state and about choosing to move forward, instead of backwards. The best way to do that is not to focus on ideological battles but to bring Iowans together by investing in our future to create jobs, continue our national leadership in renewable energy and build 21st Century schools.”

John Deeth seems optimistic that the Vander Plaats crusade will fail. He makes a good point today:

Just for the record, here’s how the math usually works out on these things: the judges almost always win [retention] by an 80%-20% margin, with 40% or so of voters just skipping the contests entirely. I don’t see BVP swaying a typical independent voter. If he has any impact it’s on the margins, lowering that undervote percentage.

In [the] 1992 ERA vote, I learned a tough but basic lesson: Loudly reminding your people to vote Yes in an otherwise low-profile race simultaneously reminds the other side to vote No. The polarity is reversed here but BVP faces the same dilemma.

In 2004, activists on the religious right “mounted an unsuccessful campaign to oust Woodbury County District Court Judge Jeffrey Neary in 2004 based on Neary’s decision to grant a divorce to two lesbians who had entered into a civil union in Vermont.” Here’s hoping Vander Plaats fails too.

Share any relevant thoughts in this thread. Do you think Branstad can get by with weasel wording on the retention vote for the rest of the campaign? Or will he be forced later to come out explicitly for or against keeping Justices Ternus, Michael Streit and David Baker on the high court?

UPDATE: A statement from the American Judicature Society is after the jump. Iowa’s judiciary has been recognized as among the best in the country.

AUGUST 11 UPDATE: How cowardly is Terry Branstad?

“This is a ballot issue, and Gov. Branstad believes this is an issue on which people need to decide for themselves,” spokesman Tim Albrecht said today. “He respects the secret ballot and believes people should vote their conscience.”

State attorneys general have filed two federal lawsuits challenging the individual mandate to purchase health insurance, which President Barack Obama signed into law last week. Those lawsuits look like pure political posturing to me, given the well-established Congressional powers to regulate interstate commerce and taxation.

It turns out that precedent for a health insurance mandate is much older than the 1930s Supreme Court rulings on the Commerce Clause. Thanks to Paul J. O’Rourke for the history lesson:

In July, 1798, Congress passed, and President John Adams signed into law “An Act for the Relief of Sick and Disabled Seamen,” authorizing the creation of a marine hospital service, and mandating privately employed sailors to purchase healthcare insurance.

This legislation also created America’s first payroll tax, as a ship’s owner was required to deduct 20 cents from each sailor’s monthly pay and forward those receipts to the service, which in turn provided injured sailors hospital care. Failure to pay or account properly was discouraged by requiring a law violating owner or ship’s captain to pay a 100 dollar fine.

This historical fact demolishes claims of “unprecedented” and “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty…”

Perhaps these somewhat incompetent attorneys general might wish to amend their lawsuits to conform to the 1798 precedent, and demand that the mandate and fines be linked to implementing a federal single payer healthcare insurance plan.

O’Rourke posted the full text of the 1798 legislation as well.

I’m not one to claim American’s “Founding Fathers” could do no wrong; after all, President Adams also signed the Sedition Act, which violated the First Amendment. But Republican “strict constructionists” say we should interpret the constitution only as 18th-century Americans would have understood it. Some claim judges should cite only 18th-century sources when interpreting the constitution. Well, Congress enacted and the president signed a health insurance mandate less than a decade after the U.S. Constitution went into effect.

I don’t expect these facts to affect Republican rhetoric about health insurance reform. Thankfully, Iowa Attorney General Tom Miller is not wasting our state’s money on this frivolous lawsuit. So far I haven’t heard any Republicans demand his impeachment, as some GOP legislators are doing in Georgia.

A couple of years ago, I would have said State Representative Dwayne Alons (House district 4). Longtime Bleeding Heartland readers may remember Alons as the guy who asserted during a committee hearing on greenhouse gas emissions that global warming would be good for Iowa because warmer temperatures helped ancient Mayans grow taller and stronger than today’s men and women. The following year, Alons remarked, “We shouldn’t be as concerned, actually, about warming, especially now that we have modern refrigeration and air conditioning.”

Alons sets the bar high in terms of cluelessness, but after reading this piece by Jason Hancock today, I think State Representative Jason Schultz (House district 55) could give him a run for his money. Schultz has introduced House File 2313, which stipulates,

 1  1    Section 1.  NEW SECTION.  602.1100  Judicial authority.

 1  2    1.  A judicial officer shall not use judicial precedent,

 1  3 case law, penumbras, or international law as a basis for

 1  4 rulings.  A judicial officer shall only use the Constitution

 1  5 of the United States, the Constitution of the State of Iowa,

 1  6 and the Code of Iowa as the basis for any ruling issued by such

 1  7 judicial officer.    The only source material that may be used

 1  8 for interpreting the Constitution of the United States by a

 1  9 judicial officer in this state shall be the Federalist papers

 1 10 and other writings of the founding fathers to describe the

 1 11 intent of the founding fathers, and if such source material is

 1 12 used, the full context of the source material must be used by

 1 13 the judicial officer.

 1 14    2.  This section is not reviewable by the court.

 1 15    3.  A violation of this section by a judicial officer shall

 1 16 be considered malfeasance in office and subjects the judicial

 1 17 officer to impeachment under chapter 68.

Bad ideas are not in short supply at the Iowa Capitol, but Schultz has taken things to a new level of stupidity here. No precedent and no case law, really? I have never heard of a so-called “strict constructionist” who would prohibit judges from citing previous court rulings in forming their opinions. In effect, Schultz is saying judges have to reinvent the wheel in almost every case. Yet conservative jurists usually lean toward respecting precedent.

Schultz would not allow any judge to consult historians’ work on the Constitution or the Federalist Papers either, as if there can be no ambiguity about what 18th-century language was meant to convey.

Mr. desmoinesdem reminds me that even U.S. Supreme Court Justice Antonin Scalia, a critic of citing foreign law in U.S. courts, has cited international law before when interpreting a treaty. In a recent case Scalia even cited the Babylonian Talmud, which is more than 1,000 years old.

If you’re wondering why Schultz wants to ban “penumbras,” that term alludes to the idea that there is a right to privacy, even though the Bill of Rights does not contain the word “privacy.”

Schultz’s bill isn’t going anywhere, and Drake University law professor Mark Kende notes that it would be unconstitutional in any event.

Like many Iowa Republicans, Schultz appears not to have a solid grasp of the judicial review concept. His support for a bill that would restore elections for Iowa Supreme Court justices indicates that he’s not sold on judicial independence. But even in the context of bad Republican ideas, House File 2313 stands out. Schultz is angry that the Iowa Supreme Court cited Iowa case law in its Varnum v Brien ruling last year, so the solution must be to ban judges from considering case law.

Not only is Schultz ignorant, he also demonstrated an impressive mean streak by introducing a bill this session “that would remove protections for gay, lesbian and transgender students from an anti-bullying law passed in 2007.” (More on that here.)

Iowa politics-watchers, who do you think is the most embarrassingly ill-informed member of the Iowa legislature? Make your case in this thread or e-mail me confidentially: desmoinesdem AT yahoo.com.  

Republican State Representative Kent Sorenson is trying to amend the Iowa Constitution to bring back elections for the seven state Supreme Court justices.

Republicans Dwayne Alons and Jason Schultz joined Sorenson in introducing House Joint Resolution 2013 this week. It would amend the constitution to require Supreme Court justices to be elected to six-year terms. Lower-court judges would continue to be appointed, as they have been since Iowa approved a constitutional amendment in 1962 to eliminate judicial elections. Under the current system, the governor appoints district and Supreme Court judges from lists of nominees submitted by judicial nominating commissions.

Other social conservatives have vowed to defeat the three Supreme Court justices who are up for retention in 2010 because of last year’s Varnum v Brien ruling, which cleared the way for same-sex marriage in Iowa. But even that isn’t good enough for Sorenson and his allies. They are so upset about one court ruling that they would toss out a method for selecting judges which has worked well for nearly a half-century. The Des Moines-based American Judicature Society has plenty of resources on the importance of judicial independence and the benefits of a merit-based system over judicial elections. The U.S. Supreme Court’s recent Citizens United case lifted restrictions on corporate spending to influence elections, providing another reason not to mess with Iowa’s judicial selection process.

Sorenson’s constitutional amendment probably won’t go anywhere, but he may use the proposal as a rallying cry in his campaign against Staci Appel in Iowa Senate district 37 this year. Appel’s husband, Brent Appel, is an Iowa Supreme Court justice. He is not up for retention this November.

UPDATE: Via the latest from Todd Dorman I learned that State Representative Rod Roberts, a Republican candidate for governor, has introduced his own constitutional amendment:

His proposal, House Joint Resolution 2012, calls for appointing nine justices – one from each judicial district and one at-large. It would require justices to continue to live in the district as long as they sit on the court.

“Even people in the legal profession tell me this would help the court get connected at the grass roots level,” he said.

Dorman comments,

Justices should answer to the state constitution, the law and precedent, not to public sentiment. They’re appointed through a bipartisan, drama-free process that focuses on their experience and qualifications. They already face regular retention votes.

So explain to me why we would throw out that system in favor of open electioneering. It’s a horrible idea.

And picking them by geography instead of qualifications isn’t much better.

How is this stuff conservative?

You don’t want judges who “legislate from the bench,” so you elect them just like legislators?

The Iowa Bar Association opposes the proposals from Sorenson and Roberts.

Iowa Supreme Court Chief Justice Marsha Ternus had bad news about the condition of the judiciary when she addressed the Iowa legislature yesterday.

Since the 2002 fiscal year, she noted, staffing levels have been reduce[d] by 17 percent. In just the last year, staff was cut by 11 percent. In fact, the state’s courts now operate with a smaller workforce than it had in 1987, the year the state assumed full funding for the court system. The number of serious and time-consuming cases before the court, however, have increased by 66 percent.

Ternus also argued that budget shortfalls have adversely impacted the Judicial Branch more than any other aspect or agency in government.

“Unlike many state agencies and the regents, the judicial branch has no pass-through funds, no programs to cut and no reserves to tap. Nearly all our operating costs are for people – employees and judges who are the life blood of the court system – so when we cut our budget, we must cut our workforce.”

Ternus warned of “assembly line justice” and “de facto consolidation” of courts if state legislators do not at least maintain current levels of funding. (Click here for a pdf file containing the full text of Ternus’ speech.)

While the judiciary has faced several rounds of budget cuts, demand for court services has increased because of the recession. For example, during the past two years mortgage foreclosures have increased by 34 percent in Iowa, cases relating to domestic violence protection have increased 15 percent, and “juvenile commitments for drug or mental-health issues” have risen by 76 percent.

Current state law requires courts to operate in all of Iowa’s 99 counties. That made sense when it could take the better part of a day for people to travel to their county courthouse, but it’s not an efficient use of resources now. I am with the Des Moines Register’s editorial board: state legislators need to either allocate enough funding for the judicial system we have, or amend the law to allow some consolidation of courthouses. The latter would run up against stiff resistance in the Iowa House and Senate because of the likely impact on some small county-seat towns. But it’s wrong to let civil and criminal court services degrade across the state. If budget constraints demand efficiency measures in other branches of government, let the judiciary make the best use of available funds by consolidating where necessary.

UPDATE: Governor Chet Culver told the Iowa Independent that he shares the concerns Ternus raised and does not support any further funding cuts for the judiciary.

President Barack Obama will get his first chance to appoint a Supreme Court justice this year because of Justice David Souter’s plans to retire. Here is my wish list:

1. Obama should leave no opening to question whether his nominee is qualified for the Supreme Court. The easiest way to accomplish this would be for Obama to elevate one of the many good judges Bill Clinton appointed, who now have a decade or more of experience in the federal court sytem.

2. Among the highly qualified candidates, Obama should pick someone who is not a white male. Normally I detest identity politics, but this is the exception that proves the rule. Only two white women have ever served on the U.S. Supreme Court. Only two black men have ever served on the court. No Latino or Asian men or women have served on the court. It’s not a question of picking someone less qualified. I assume that approximately 200 Americans are qualified for this job, and many people with superb credentials are not white males. Some of them are mentioned here.

3. I don’t want Obama to use this opportunity to prove how bipartisan he is by nominating some middle-of-the-road judge. George Bush’s extreme right-wing nominees, John Roberts and Samuel Alito, need to be balanced. I am not saying Obama should pick a radical left-winger, but he should pick someone better than “centrist.”

4. On a related note, I would like to see someone to help move the Supreme Court away from its current pro-corporate bias. Clinton’s appointees were quite corporate-friendly, especially Steven Breyer. Bush’s appointees were extremely hostile to the rights of workers and environmental concers. I want someone who will bring some balance to the court.

5. Mr. desmoinesdem adds that Obama should pick someone with expertise in criminal law. None of the current justices had that background when they were appointed, but the Supreme Court hears many criminal law cases. I would assume that any judge with a decade of experience in the federal court system would be sufficiently familiar with criminal law.

I am confident that Obama will pick someone qualified. I am reasonably confident he will pick someone who is not a white male. I am less optimistic about whether he will pick a liberal. Given the economic team Obama has assembled, I am pessimistic about the chances for him to pick someone with less of a pro-corporate bias.

What do you think?

Todd Beeton spoke for many when he wrote last night,

Dear Justice Souter,

Thank you for waiting.

Thank you.

I’m grateful to Justice John Paul Stevens, but in some ways Souter deserves our thanks more, because for the last eight years he put his own preferences aside for the sake of the public interest.  

After the jump I’ve posted an excerpt Mr. desmoinesdem showed me from Jeffrey Toobin’s book The Nine: Inside the Secret World of the Supreme Court. It describes how Souter was “shattered” by the majority’s ruling in Bush v. Gore.

Iowa Independent reports that Senator Arlen Specter’s decision to become a Democrat leaves Iowa’s own Chuck Grassley with a difficult choice. He is currently the ranking member of the Senate Finance Committee, but with Specter’s departure he appears to be first in line to become ranking member of the Senate Judiciary Committee instead. According to Iowa Independent,

GOP conference rules forbid him from serving as ranking member of both panels at the same time, a Senate aide said Tuesday. Theoretically, he could get a waiver to serve on both, but that’s unlikely, the aide said.

So very shortly, Grassley has a tough choice to make: Either he can remain the senior Republican on Finance – a powerful spot this year with comprehensive health reforms looming, but also a position he’ll have to give up at the end of 2010 because of GOP term-limit rules – or he can accept the top GOP spot on Judiciary.

Judiciary will consider many important matters this year and next, possibly including a Supreme Court nominee. However, if I were Grassley I would stay at Finance for sure.

President Barack Obama wants health care reform to happen this year and is willing to use the budget reconciliation process to make it happen. The health care reform bill may become one of the most important pieces of legislation this decade. By all accounts Grassley has a strong working relationship with Senate Finance Committee Chairman Max Baucus.

I don’t think Judiciary will consider anything of comparable importance this year, and I doubt Grassley and Senate Judiciary Committee Chairman Pat Leahy would quickly develop the same kind of rapport Grassley has with Baucus.

At the end of 2010, Grassley’s term as ranking member of Finance will be up, and he can choose whether to become the ranking member of Judiciary or Budget. He has expressed a preference for Judiciary in the past.

If you were Grassley, would you take the chance to become the ranking member at Judiciary this year? If Grassley did give up his current position, it appears that Orrin Hatch would become the ranking member at Finance.

By the way, David Waldman reported yesterday at Congress Matters that Specter’s switch throws off the Judiciary Committee’s ratio of Democrats and Republicans. A new Senate organizing resolution will have to be adopted, and Democrats may use that opportunity to secure more seats on the Senate committees.

UPDATE: Grassley’s press secretary Beth Pellett Levine told me on Wednesday that the senator has not made any statement about whether he would consider becoming the ranking Republican on the Judiciary Committee.