A former administrative law judge who testified about political interference at Iowa Workforce Development is facing a felony fraud charge after staff in the Polk County Attorney’s office failed to do their homework.

Ryan Foley reported Thursday for the Associated Press that former Administrative Law Judge Susan Ackerman is charged with making fraudulent submissions, having “falsely certified that her married daughter was single so that she could receive state health insurance in 2013 and 2014.” When the Iowa Supreme Court Attorney Disciplinary Board reviewed an Iowa Workforce Development complaint citing the same conduct a year and a half ago, the board determined “that Ackerman didn’t commit an ethical violation and declined to take action against her law license,” Foley noted.

So why is she facing criminal prosecution now? Because no one in the Polk County Attorney’s office researched this case before filing charges.

Another one for the “elections have consequences” file: The Iowa Supreme Court unanimously ruled on November 10 that Governor Terry Branstad “did not exceed the scope of his constitutional authority” when he vetoed funds state lawmakers had approved to keep open mental health facilities in Mount Pleasant and Clarinda.

A large group of Democratic legislators, joined by the president of the public employee union AFSCME, filed suit soon after Branstad vetoed the funding in July 2015. Their lawsuit contended that Iowa Code contains language requiring the state to operate Mental Health Institutes in Mt. Pleasant and Clarinda. But last November, a Polk County District Court held that “Existing statutes are not conditions on appropriations” and “cannot limit the Governor’s item veto authority.” Bleeding Heartland published excerpts from Judge Douglas Staskal’s decision here.

Last week’s Iowa Supreme Court opinion by Justice David Wiggins affirmed Staskal’s ruling but found that the District Court “failed to address” a matter of constitutional law raised by the plaintiffs. After additional analysis of the legislative intent behind language designating the facilities in Mount Pleasant and Clarinda as “state hospitals for persons with mental illness,” the high court reached the same conclusion as Staskal: the governor had the power to veto funds earmarked for operating facilities he had closed. I enclose below excerpts from the opinion.

Branstad’s spokesperson Ben Hammes did quite the spin job in his statement:

Today’s unanimous Supreme Court decision affirms the Governor’s action by allowing more Iowans to have access to quality mental health care and substance abuse treatment than ever before. The State’s mental health care redesign allows Iowans to access treatment in a community-based setting and through more modern means. Gov. Branstad is committed to putting patients first, improving care, increasing access and modernizing the delivery of mental health services. In fact, there are currently at any time 60-100 psychiatric inpatients beds open across the state. Iowa now maintains a robust level of access to mental health beds that are more efficiently delivered.

Nice try, Hammes. In reality, the justices did not assess either the merits of Branstad’s decision to close the in-patient facilities or the quality of mental health care and substance abuse treatment in Iowa. In reality, Iowa “consistently ranks in the bottom five of all states in every single category of mental health programs and services.” In reality, Iowa “ranks dead last in the country for state psychiatric beds per capita.” In reality, “many Iowans with serious mental illnesses are being marooned” for weeks or months in hospitals, for lack of adequate facilities or services to monitor their care.

A frightening look at how a changed Supreme Court might strip LGBT Americans of marriage rights. You can find previous writing by Bill from White Plains here. -promoted by desmoinesdem

If there is one group whose rights may be most immediately at risk following the election of Donald Trump to the Presidency of the United States, it isn’t refugees, or Muslims, or Mexicans, or women. It is those who are wed to their gay partners. The reason for that has a lot to do with a really poorly written and poorly reasoned United States Supreme Court ruling finding restrictions on marriage to those of different genders unconstitutional.

The ruling, Obergefell v. Hodges, does a couple of really bad injustices to gay married couples.

The last three Iowa Supreme Court justices involved in the landmark 2009 marriage equality ruling are on the ballot this year: Chief Justice Mark Cady (author of the Varnum v Brien decision) and Justices Brent Appel and Daryl Hecht. However, this year’s Iowa judicial retention elections aren’t getting much attention, largely because social conservative groups decided not to engage heavily in the fight.

By this point in 2010, television commercials calling for a “no” vote on three Iowa Supreme Court justices had been on the air for six weeks. Bob Vander Plaats and allies were holding “Judge Bus” events across Iowa. In a radio ad, Representative Steve King urged listeners to “vote ‘no’ on Judges [Marsha] Ternus, [Michael] Streit and [David] Baker” to “send a message against judicial arrogance.” For about a month before the 2012 general election, conservative groups paid for tv ads asking Iowans to “hold [Justice] David Wiggins accountable for redefining marriage and legislating from the bench.”

In contrast, Vander Plaats and like-minded Iowans have made a lower-key case against Cady, Appel, and Hecht, largely relying on e-mail, social media postings, and letters to the editor. They probably realized a full-court press was unlikely to succeed in a presidential election year. Nor did they have a way to fund a more extensive anti-retention campaign, with the biggest donor from 2010 and 2012 staying on the sidelines this year.

Supporters of retaining the Supreme Court justices are taking no chances, though. Two groups are leading the fight to persuade and remind voters to mark “yes” for all Iowa judges, especially Cady, Appel, and Hecht. I enclose below a sampling of messages from the Justice Not Politics coalition and the Iowa State Bar Association.

Guest author Bill from White Plains takes a close look at a U.S. Supreme Court case that is a perennial issue in presidential campaigns. You can read earlier posts in his series on the Supreme Court here. -promoted by desmoinesdem

“Abortion? I personally don’t think abortion is that important. I think it’s just an issue to evade whatever issues are makin’ people drink about abortion.” Bob Dylan, 2016 winner of the Nobel Prize for Literature, speaking to Rolling Stone in 1986

You wouldn’t know it if you listened to the second and final 2016 Presidential debates, abortion isn’t even in the top 10 of the most important Presidential election issues this year. According to the Pew Research Center’s survey results from the week, June 15-26, 2016, abortion comes in at #13 of the 14 most important issues, trailing, among others, gun policy (#5), immigration (#6), Social Security (#7), trade policy (#11) and the environment (#12). Likewise, what one might expect as a hot-button issue – marriage equality – is last on the list (#14), meaning (according to Pew, anyhow) that only 40% of potential voters believe this is a “very important” issue.

Of course, in that same poll, Supreme Court Justices come in at #9, meaning that 65% of those surveyed believe appointments to the most influential court in America, and elsewhere, are “very important.”

But the issue was brought to the forefront at the debates, anyhow.

United States Supreme Court Justice Antonin Scalia during a January 28, 2013 book promotion at Southern Methodist University

Thanks to Bill from White Plains for another close look at the U.S. Supreme Court. His first post in this series is here. -promoted by desmoinesdem

At the end of the second Presidential debate, held on October 9, 2016 in St. Louis, Missouri, and at the outset of the third (and final) Presidential debate, held October 19, 2016 in Las Vegas, Nevada, both candidates – New York Republican Businessman Donald John Trump and former Democratic New York senator – and former United States Secretary of State – Hillary Clinton provided their “litmus tests” for their nominees to the United States Supreme Court.

As the results of the upcoming Presidential election are impending, much ink – digital and print – and more breath have been spent discussing “The Supreme Court.”

The Supreme Court’s fourth Chief Justice, John Marshall, famously wrote, in Marbury v. Madison (1803), that the United States Supreme Court “emphatically” has “the province and duty . . . to say what the law is.”

When John Marshall wrote that, the number of justices on the United States Supreme Court was set by the Judiciary Act of 1789 at six by the Congress (the Federal legislature) of the United States – the Chief Justice and five associate justices. That is because there is no set number of justices articulated in the United States Constitution. Article III of the United States Constitution governs the powers of the Federal judiciary. Article I of the United States Constitution governs the responsibilities of the Federal legislature, which is the bi-cameral body (the Senate and the House of Representatives) collectively known as the Congress of the United States.

Pursuant to the Judiciary Act of 1869 (16 Stat. 44 (1869)), an act passed by Congress, and currently found at 28 U.S.C. § 1, the number of United States Supreme Court justices is now set at nine.

Prior to 1869, the number had been as high as 10.

Currently, there are eight United States Supreme Court justices due to a vacancy created by the death of Associate Justice, Antonin Gregory Scalia, which occurred nine months ago on February 13, 2016.

The office of the Presidency of the United States is created by the United States Constitution under Article II, regarding the “Executive” branch of government. See U.S. CONST. ART. 2 § 2 cl. 1. Among the constitutional powers of the President is the power – and the duty – to appoint Federal judges. That authority is found at U.S. CONST. ART. 2 § 2 cl. 2 (“He [yes, he – not he or she] shall have Power . . . and by and with the Advise and Consent of the Senate, shall appoint . . . Judges of the supreme court and other Officers of the United States. . . .”).

During this presidential election cycle, the question has come up, again and again, whether the Senate has a co-existing duty to provide “Advice and Consent.” Particularly this year, and particularly in Iowa, this question has been a topic of discussion because Iowa’s own senior Senator, Charles Ernest Grassley, a Republican, is the Chairman of the House Judiciary Committee (the committee that, among other things, presides over hearings on Federal judicial nominees), in a Senate whose majority is currently Republican, and who is running for re-election. Senator Grassley has stated publicly that Merrick Brian Garland – the judge outgoing Democratic President Barack Obama has nominated to fill the vacancy created by Associate Justice Scalia’s death – will not be considered by the Judiciary Committee because President Obama nominated him during an election year.

The truth is, the Senate probably does have a Constitutional duty to consider the Article III judicial nominations made by the President. But, it’s not clear. The Constitution itself, in Article I (the article laying out the make-up and responsibilities of the Senate and the House of Representatives), is silent on the matter. But, under Article II, the article laying out the powers and responsibilities of the Executive Branch of the United States generally, and of the President of the United States particularly, the Constitution gives a duty to the president to nominate and, upon the Senate’s approval, appoint, Federal Judges (defined generally, by Article III, but particularly United States Supreme Court justices).

The Constitution, by virtue of creating the duty in the President, makes some assumption that the Senate, upon being created by Article II, will follow through with acting on the nomination. But again, Article I, which creates the Senate, doesn’t specify how the Senate should handle presidential nominations of judges or anybody else.

To the extent there is some dormant obligation on the part of the Senate to be read in the Constitution, the Senate has ignored it for nearly 200 years. A March 16, 2016 “Fact Check” commentary in The Washington Post called, “Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?” cites President John Quincy Adams’ lame duck nomination of a potential justice in December 1828 – two months after he lost his bid for re-election, three months before his successor, Andrew Jackson, would take office. The Senate ignored the nomination. President Jackson, shortly after his inauguration, nominated the successor, who was later approved by the Senate, and appointed. The Post’s commentary, written by Glenn Kessler, concludes that

Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.

Then, of course, there is the situation where Congress is not in session. The President has power under the Constitution to appoint Federal judges when that situation arises. It should not go unnoticed that, since this past February, the Senate has jiggered its individual members’ time such that someone is always, at least, present in Washington, so, technically, the Senate is never in recess.

Judges of the United States Supreme Court, being among the “Officers of the United States,” the President has the power to appoint them while the Senate is in recess, pursuant to by U.S. CONST. ART. 2 § 2 cl. 3, but upon the Senate’s return, the Senate must confirm that appointment by the end of its term – typically meaning, the end of that calendar year. Indeed, Associate Justice William Joseph Brennan Jr. (1956), Associate Justice Potter Stewart (1958) and, perhaps most significantly, Chief Justice Earl Warren (1953), were all recess appointees of President Dwight D. Eisenhower, whose appointments were subsequently confirmed by the United States Senate.

Justice Brennan’s appointment was not only a recess appointment, but a 1956 appointment. Nineteen fifty six was an election year and moderate conservative President Eisenhower was running for re-election. William J. Brennan was a Roman Catholic Democrat, a moderate liberal, and from the northeast. He was, in other words, a superfecta nominee for a Republican President seeking to please those four constituencies that year. At the time, William Joseph Brennan Jr. was serving his fifth year as an associate justice on the New Jersey Supreme Court, following a brief tenure (less than two years) as a New Jersey trial judge.

Associate Justice Potter Stewart was perhaps the first of only two “swing justices” in the United States Supreme Court’s history; the predecessor to Justice Anthony McLeod Kennedy, who is currently an Associate Justice on the Supreme Court.
Earl Warren, governor of California, had run against General Dwight David Eisenhower for the Republican Presidential nomination in 1952. Prior to Eisenhower’s subsequent nomination, young, California Senator, Richard M. Nixon, had publicly endorsed Governor Warren for the Republican Party’s nomination. Nixon – feral, self-serving and despicable always – turned on fellow Californian Warren like Peter to Jesus before the cock crowed, when then-General Eisenhower offered Nixon the vice presidency if Eisenhower were elected.

Consequently, in 1953, Nixon actually had a legitimate reason to be paranoid about Warren’s political retribution. Likewise, then-President Eisenhower owed Warren, big time. Initially, Eisenhower offered Warren the role of United States Solicitor General (whose office argues all Federal appeals to the United States Supreme Court) and promised to follow that up with a Supreme Court appointment once a vacancy arose. Before he could announce his appointment of Warren as Solicitor General, however, a Supreme Court vacancy arose.

As happened most recently when District of Columbia Circuit Judge John Glover Roberts Jr., who had never served as an associate justice of the Supreme Court before being nominated for a Chief Justice slot (Chief Justice William J. Rehnquist having passed away), Earl Warren was appointed by President Eisenhower, not only as a new Supreme Court justice, but to the position of Chief Justice, replacing Chief Justice Fred M. Vinson, who died unexpectedly in 1953.

In 1953, Earl Warren was everything that a Republican President in 2016 would want in a Supreme Court Justice. First, he was a Republican up-and-comer with a solid, conservative background. In any election cycle other than 1952, he probably would have been President of the United States. But in 1952, bolstered by his status as a five-star general in World War II, Dwight D. Eisenhower was the Republican nominee who ultimately won the presidency by huge numbers (442 electoral votes to his opponent, Adlai Stephenson’s 89 electoral votes).

In 1953, Earl Warren was serving his third term as Governor of California. As governor, he had successfully used New Deal financial initiatives to create jobs in California, chiefly through the creation of vast infrastructure initiatives like highways and bridges, and higher education both in terms of advancing scholarship and constructing brick-and-mortar institutions with the expansion of the University of California system with universities, colleges and community colleges.

Prior to becoming California’s longest-serving Republican governor (his tenure in California has only recently been surpassed by current Democratic governor, Jerry Brown, who was previously California governor in the 1970s), Earl Warren had been the state’s attorney general. As attorney general, Warren was responsible for implementing a number of programs Americans now view as loathsome and reprehensible. Perhaps his most unfortunate and enduring legacy was the internment of Japanese immigrants – among them many, many American citizens of Japanese descent – during World War II. Likewise, Warren enforced laws that promoted eugenics in the form of sterilization of Mexicans, Asians and Native Americans – primarily women – in order to have their communities die out so that the state could confiscate their land.

Prior to becoming attorney general, Warren had been a “tough on crime,” “law and order” county attorney for Alameda County, targeting bootleggers and corrupt politicians.

Warren went on, then, to become the Chief Justice who, with a compliment of like-minded jurists from 1953 through his retirement in 1969, ushered in perhaps the most liberal Constitutional case law in the history of the Supreme Court. Right out of the shoot, the Supreme Court ruled on Brown v. Board of Education of Topeka, Kansas, in 1954, and held, unanimously, that separate but equal school systems for Black children and White children were inherently unequal. Brown overturned more than half a century of precedent from its 1896 Plessy v. Ferguson decision to the effect, separate accommodations in every aspect of public life from rail cars to rest rooms, was equal and acceptable.

Likewise, the Warren court, in 1962, decided a case about Congressional redistricting that was so gut wrenching for the justices that one of them, Associate Justice Charles Evans Whittaker, a conservative justice from Missouri who had only been on the Court for six years, recused himself and quit the Court the next year. In that case, the Supreme Court ruled that the Fourteenth Amendment to the United States Constitution afforded equal protection under state legislatures’ redistricting laws. Generally, states re-draw their Congressional districts in order to make them relatively equal in population. They do this by using the United States census. The affect to redrawing Congressional districts is, the interests of the populace change based on how you determine the population. And, as a result of that, state legislatures “gerrymander” the districts, such that, to draw them out on a map, they look like a crazy quilt, because they are rigged to retain a certain party’s power, while fulfilling the obligation to keep the districts relatively equal in terms of population.

But that is a story for another time.

In Baker, the plaintiff was a Tennessee mayor living in an urban district seeking re-election in the late 1950s who noticed that the Congressional districts hadn’t changed since 1901, following the 1900 Federal census. In that half century, the population had shifted from primarily rural to urban, but the district map had not been updated; the district had not been reapportioned. The defendant, Joe Carr, was the Tennessee secretary of state, based on the fact he was officially in charge of conducting free and fair elections. The only question for the court at the time was whether the matter was purely legislative, and the responsibility of the state’s elected officials to sort out, or whether it was something courts could decide.

The Warren Court, split 6-2, with Justice Whittaker abstaining, ruled in Baker that reapportionment was “justiciable:” whether, under Article III, the case was either a “case” or “controversy.” Article III § 2 cl. 2 of the United States Constitution lays out the jurisdiction (what it calls the “judicial power of the United States”) of the United States Supreme Court and “inferior Courts as the Congress may from time to time ordain and establish.” This was a very big deal because, as is just as true today, the dividing line between states’ rights and Federal government intrusion was a major issue. In the ruling, the court went out of its way to list a series of cases that, it said, confirmed that reapportionment was always justiciable. That being said, the question arose, “Why now, then?” The answer, history has shown, is that the Warren court “went there;” all previous courts had begged off.

But that is as far as it went. The Supreme Court’s Baker ruling did not decide whether Tennessee’s Congressional districts were Constitutional; it remanded the case back to the trial court to make that determination.

Until 1964, when the court exercised its newly-proclaimed justiciability over Congressional redistricting, in a case called, Reynolds v. Sims. The question in Reynolds was whether a state’s redistricting of its own legislative districts was unconstitutional under the United States Constitution. There, the Alabama Constitution called for one state senator for every county. Voters in Jefferson County, Alabama – home of the state’s capital, Birmingham, objected to the consequential disparity between the power of their senator, representing a densely populated urban region, and that of any senator from some rural and sparsely populated county.

As in Baker, the apportionment of Alabama counties in Reynolds was based on the 1900 census and a 1901 statute setting forth the rules of redistricting. As in Baker with respect to Missouri, much had changed in those 50 + years, population-wise, in Alabama. In Reynolds, the population variations were so lopsided that when comparing urban and rural counties, the Court found that in some cases, a senator would receive 41 votes in one county for 1 vote received by a senator in another county.

The court was careful in Reynolds to point out that “No effective political remedy to obtain relief against the alleged malapportionment of the Alabama Legislature appears to have been available.” The court was obviously still concerned about the impression the Federal judiciary (nine unelected judges) was forcing its preferences onto the people (judicial activism). It observed that, in order to change the redistricting in Alabama, there had to be a constitutional amendment and constitutional amendments in Alabama could only occur through a 3/5 majority of legislators agreeing to one, followed by a simple majority vote of the people or, by means of a constitutional convention called after a simple majority of the popular vote, and approved by a majority of senators and house legislators. The senators and house members, having obtained their seats through the lopsided system created in 1901, were not likely to change anything.

Ultimately, the court found that the system was unconstitutional under the 14th Amendment’s equal protection clause, and that the constitution required a system to permit a proportional, one person-one vote, plan. The court wrote, as follows:
History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures, So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equal-population principle. Again, people, not land or trees or pastures, vote. Modern developments and improvements in transportation and communications make rather hollow, in the mid-1960’s, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.

Voting rights was a major civil rights issue in 1964, as they continue to be today, 52 years later. But it took the Warren court to break through a century of states running amok with voting schemes that disenfranchised voters. One of the important issues Hillary Clinton raised during the second Presidential debate was voter disenfranchisement.

Aside from voting rights, the Warren court declared in Gideon v. Wainwright (1963) that the Fifth and Sixth Amendments to the United States Constitution afforded indigent Federal prisoners the right to defense counsel paid for by the Federal government. And, in 1968, the Warren court ruled, in Miranda v. Arizona, that a criminal suspect must have his rights explained to him before being interrogated by law enforcement officials – especially the right to remain silent, because anything said can, and will, be used against that suspect.

This level of Constitutional analysis resulting in such a sweeping installment of rights to so many people in such a brief, 16 year period, is viewed by many as unprecedented since Chief Justice Marshall articulated the power of the Federal courts and, in particular, the Supreme Court.

As will be discussed in subsequent installments, there are several questions about the outcome of the 2016 Presidential campaign as it relates to the Supreme Court as a body, and as it relates to the individual justices as legal scholars. As I have just demonstrated, Chief Justice Earl Warren turned out to be the polar opposite of what President Eisenhower would have wanted, much less expected, from the hard-as-nails/law and order California governor and attorney general that Warren had been before presiding over the United States Supreme Court.

Just as clearly, and as demonstrated prior to the recent appointments of Associate Justices Sonia Maria Sotomayor and Elena Kagan, a block of justices appointed by Presidents of a certain political ideology can affect the types of cases, and the outcomes of cases, coming before the Supreme Court.

Over the next four, and potentially eight, years, the next president is likely to replace up to four justices on the United States Supreme Court – two of them (Associate Justices Ruth Bader Ginsburg and Stephen Gerald Breyer), appointees of Democratic, politically moderate, President William Jefferson Clinton and two of them (Associate Justices Antonin Gregory Scalia and Anthony McLeod Kennedy), appointees of Republican, politically conservative, President Ronald Wilson Reagan.

Sometimes, as in the case of the period Chief Justice Earl Warren presided over the Court, that can mean a great deal. Other times, like the past 37 years since Chief Justice Warren retired, and that sesquicentennial period between Chief Justice John Marshall’s 1803 Marbury v. Madison opinion and the commencement of Chief Justice Warren’s term on the Supreme Court began in 1953, it hasn’t seemed to matter much at all.

The 48 hours before tonight’s town-hall debate were unlike anything seen before in a American politics: 42 Republican members of Congress or governors had announced since Friday that they could not support their party’s presidential nominee. Daniel Nichanian (known on Twitter as Taniel) listed the Donald Trump defectors in narrative form and on this spread sheet.

Hillary Clinton had already been gaining in nationwide and swing state polls since the first debate on September 26, improving her chances of winning the presidency to above 80 percent on FiveThirtyEight.com–before massive news coverage and social media chatter about Trump’s “grab them by the pussy” videotape. FiveThirtyEight’s Nate Silver speculated that “The Bottom Could Fall Out for Trump,” while Nate Cohn of the Upshot wondered whether the new scandal could send the whole Republican ticket “crashing down.”

Shortly before the debate, Trump staged a bizarre media stunt with three women who have accused former President Bill Clinton of sexual misconduct and one who was allegedly raped in 1975 by a man Hillary Rodham represented. Three of those women appeared on his behalf in the post-debate “spin room.”

Republicans are cheering Trump’s performance tonight, and on a superficial level, he clearly handled himself much better than in the first debate. After an excruciating early stretch defending his taped comments as merely “locker room talk” (in contrast to Bill Clinton’s alleged “actions”), Trump repeatedly hammered home his favorite talking points about Hillary Clinton: she’s been a “disaster,” her policies would be a “disaster,” she lies, she has bad judgment like Bernie Sanders said, she’s been there for 30 years but never done anything. He also gave wavering Republican voters plenty of reasons to hang in there with him: bashing Obamacare and the “terrible” Iran nuclear deal, proposing big tax cuts, promising to appoint Supreme Court justices in the mold of Antonin Scalia. Trump also finished the debate on a stronger note, managing a surprisingly gracious answer to the “say something nice about your opponent” question.

So arguably, the Republican nominee did what he needed to do tonight. And yet…

• Trump’s body language was angry and sometimes menacing. Many viewers commented that Trump was looming or hovering behind Clinton in a creepy, threatening, and stalker-like way.

• He denied that his “locker room talk” was tantamount to bragging about sexual assault. I have no doubt more women or previously unknown recordings will come out this week to undercut his denials.

• He vowed to put his political opponent in jail if he becomes president. Bob Schieffer of CBS News lamented, “this is what they do in banana republics.”

• He admitted that he had used a $916 million reported loss on his 1995 tax return to avoid paying personal federal income taxes in subsequent years.

• He made more than a dozen false or misleading statements (see also here).

• He acknowledged that he knows “nothing” about Russia and said he disagrees with his running mate on policy toward Syria. Incidentally, the Indianapolis Star reported on October 9 that unnamed sources close to Indiana Governor Mike Pence say he is “keeping his options open”–whatever that means. Pence is stuck with Trump through November 8, for better or worse.

Any comments about the presidential race are welcome in this thread. In CNN’s instant poll, 57 percent of respondents said Clinton won the debate, 34 percent said Trump did. YouGov’s respondents thought Clinton won the debate by a 47 percent to 42 percent but thought she looked “more Presidential” by a 57 percent to 31 percent.

The non-profit news site Midwest Energy News has honored two Iowans on its second annual 40 Under 40 list of “emerging leaders” working on “America’s transition to a clean energy economy.” From last week’s announcement:

Erin Buchanan works as an Energy Services Coordinator for Cedar Falls Utilities in Cedar Falls, Iowa. In 2011, Buchanan was named a “rising star in public power” by the American Public Power Association. She is a graduate of the University of North Carolina-Chapel Hill, with a B.S. in mathematical decision sciences. She also holds an M.S. in statistics from Iowa State University. […]

Josh Mandelbaum is a Des Moines-based staff attorney with the Environmental Law & Policy Center (ELPC). Before joining ELPC, Mandelbaum practiced law with Lane & Waterman LLP in Davenport, Iowa. He previously served as a senior policy advisor to Iowa Governor Thomas J. Vilsack and Lt. Governor Sally J. Pederson. Before his work in the Governor’s office, Mandelbaum held a fellowship at the U.S. Department of Transportation in the Secretary’s Policy Office. Mandelbaum is a 2000 Truman Scholar, a 2001 magna cum laude graduate of Brown University, and a 2009 honors graduate from the University of Iowa College of Law.

I wasn’t familiar with Buchanan’s work before learning about this award. I was impressed to see all the resources Cedar Falls Utilites provides for customers seeking to use less energy, purchase wind-generated electricity, buy units in a community-owned solar garden, or install small-scale wind or solar systems.

I’ve known Mandelbaum for many years and am an active supporter of the Environmental Law & Policy Center. The non-profit’s legal team has contributed to major public policy victories in the renewable energy field, from a solar power case that went to the Iowa Supreme Court to mostly below-the-radar battles with intransigent rural electric cooperatives and investor-owned utilities Alliant and MidAmerican. Mandelbaum and his colleagues have also been involved in important water policy fights, such as a 2014 Iowa Supreme Court case that kept state “anti-degradation” rules alive. Earlier this year, an Iowa District Court ruled in favor of ELPC’s lawsuit on behalf of the Iowa Environmental Council, seeking to force the state Department of Natural Resources to enforce those rules, “an important part of the [federal] Clean Water Act.”

Iowans Paritosh Kasotia and Dwight Stewart were part of the first Midwest Energy News 40 Under 40 cohort last year.

He doesn’t know what he’s doing.

Iowa Supreme Court Justice Edward Mansfield is among ten new names on Republican presidential nominee Donald Trump’s list of possible U.S. Supreme Court appointees, multiple journalists reported today.

Former Governor Chet Culver appointed Mansfield to the Iowa Court of Appeals in 2009. He was a workhorse on that bench, writing some 200 opinions in less than two years. Since Governor Terry Branstad named him to the Iowa Supreme Court in February 2011, Mansfield has been one of the court’s most prolific opinion writers. He is part of a conservative bloc of justices including the other two Branstad most recently appointed.

Mansfield’s judicial philosophy would appeal to many conservatives. He rarely joins what might be called “activist” decisions to overturn state law, administrative rule, or executive body determinations. In this year’s biggest case, Mansfield was part of a 4-3 majority upholding Iowa’s broad ban on voting by people with felony convictions. He has not joined various majority opinions related to juvenile sentencing, including one this year that held “juvenile offenders may not be sentenced to life without the possibility of parole” under Iowa’s Constitution. He dissented from a 2014 ruling that allowed a lawsuit against top Branstad administration officials to proceed.

Social conservatives might be encouraged by the fact that three years ago, Mansfield hinted in a one-paragraph concurrence that he does not agree with the legal reasoning underpinning the Iowa Supreme Court’s 2009 Varnum v Brien decision on marriage equality. However, he has never clarified whether he would have upheld Iowa’s Defense of Marriage Act or struck it down on different grounds.

The biggest red flag about Mansfield from a conservative perspective would probably be his decision to join last year’s unanimous ruling to strike down Iowa’s ban on telemedicine for abortion services. When the State Judicial Nominating Commission put Mansfield on the short list for the Iowa Supreme Court in early 2011, some conservatives grumbled that the judge’s wife was an active supporter of Planned Parenthood. Though the telemed abortion decision was grounded in the law and medical facts, critics may view Mansfield as untrustworthy on one of their key priorities for the U.S. Supreme Court: overturning Roe v Wade. I am not aware of Mansfield expressing any public opinion on that landmark 1973 abortion rights ruling.

One other Iowan is on Trump’s long list for the Supreme Court. Judge Steven Colloton of Des Moines, who serves on the Eighth Circuit U.S. Court of Appeals, was one of eleven names the Trump campaign released soon after locking up the GOP nomination. I enclose below more background on Colloton.

Leaders of the campaigns to oust Iowa Supreme Court justices in 2010 and 2012 have chosen not to engage in this year’s retention elections, which will decide whether the last three justices who participated in Iowa’s marriage equality ruling will stay on the bench.

However, the coalition formed to stop “extremists from hijacking Iowa’s courts” is taking no chances. Justice Not Politics commissioned a statewide poll last week to gauge voters’ attitudes toward Chief Justice Mark Cady and Justices Brent Appel and Daryl Hecht, as well as some issues related to controversial Iowa Supreme Court rulings.

Democratic nominee Hillary Clinton leads Republican Donald Trump by 45 percent to 43 percent in a two-way race, and U.S. Senator Chuck Grassley leads Democratic challenger Patty Judge by 49 percent to 43 percent, according to a Public Policy Polling survey of 827 “likely voters” in Iowa on August 30 and 31. PPP conducted the poll on behalf of We Need Nine, which advocates for filling the U.S. Supreme Court vacancy as a project of the Constitutional Responsibility Project. (That advocacy group has spent $31,273 so far against Grassley.)

PPP did not include minor-party presidential candidates in its ballot test, and at this writing no cross-tabs are available to shed light on Clinton’s narrow lead over Trump. The main purpose of the survey was to gauge support for Grassley and Iowa voters’ opinions on the Supreme Court vacancy.

For those wondering about priming effects–that is, whether the pollster “primed” respondents to evaluate Grassley on this issue in order to reduce his lead over Judge–PPP asked respondents about the Senate race before the series of questions about judicial confirmations. It’s worth noting that PPP did some internal polling for Judge’s campaign before the Democratic primary in June.

Buzzfeed’s Chris Geidner was first to report on this survey. I enclose below excerpts from PPP’s polling memo and other findings from the survey.

The National Organization for Marriage does not plan any “campaigning or intervention” in this year’s retention elections for three Iowa Supreme Court justices, Grant Rodgers reported for the Des Moines Register on September 5. The group was the largest single funder of the two previous anti-retention campaigns, contributing more than $635,000 to help oust three justices in 2010 and more than $148,000 to the unsuccessful effort to remove Justice David Wiggins two years later.

The last three justices involved in Iowa’s 2009 marriage equality ruling will be on the ballot this November: Chief Justice Mark Cady, author of the Varnum v Brien decision, and Justices Brent Appel and Daryl Hecht. National Organization for Marriage spokesperson Joe Grabowski told Rodgers, “There’s nothing planned at this time,” adding that “We always keep our options open.”

Those options are fading fast, with early voting set to begin in Iowa on Thursday, September 29. The previous two anti-retention campaigns, led by social conservative activist Bob Vander Plaats, were well underway by the end of August 2010 and 2012. As Bleeding Heartland discussed here, Vander Plaats and his allies have not signaled any plan to go after the Iowa Supreme Court justices. It’s a remarkable admission of weakness on their part, but also a rational decision. Convincing voters to remove justices over same-sex marriage (now allowed in all 50 states) would be a tall order, especially in a presidential election year, which brings out hundreds of thousands more voters than a typical midterm election.

This year’s high-profile voting rights case could have provided fodder for an anti-retention campaign, but that scenario failed to materialize when Cady joined three other justices to uphold Iowa’s current broad lifetime ban on voting by most people convicted of felonies.

Rodgers discussed another possible peg for a campaign against Cady, Appel, and Hecht: all joined a 4-3 decision (authored by Appel), which held that “juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution.” You can read the majority opinion, concurring opinions, and dissents in Iowa v. Sweet here. The majority ruling drew heavily on a 2012 U.S. Supreme Court decision, which invalidated mandatory life without parole sentences for juveniles, and several 2013 Iowa Supreme Court cases related to juvenile sentencing. Cady, Appel, and Hecht were all part of the majority in those 2013 cases.

Rodgers spoke to Lyle Burnett and Josh Hauser, who have experienced the tragedy of losing a loved one to a teenage killer. Both oppose retaining the three justices on the ballot this November, but “So far, neither Hauser nor Burnett have been contacted by any group or political organization that could elevate their personal campaigns.” Two victims’ advocates quoted in the Register said they do not support ousting Cady, Appel, and Hecht over this issue. It’s worth noting that neither the Iowa Supreme Court’s 2013 ruling in State v Ragland nor this year’s decision in Sweet guaranteed the release of any convicted murderer. Parole boards will still have discretion to approve or deny parole, based on expert assessments of whether the prisoner has been rehabilitated or still poses a danger to society.

Senator Chuck Grassley was in damage control mode yesterday after letting it slip earlier in the week that his supposedly principled stand on the U.S. Supreme Court vacancy could change if fellow Republicans see a political advantage in confirming Judge Merrick Garland.

His efforts to salvage some credibility did not succeed.

Three of the seven Iowa Supreme Court justices who concurred in the historic Varnum v Brien ruling on marriage equality lost their jobs in the 2010 judicial retention elections. A fourth survived a similar campaign against retaining him in 2012.

The last three Varnum justices, including the author of the unanimous opinion striking down our state’s Defense of Marriage Act, will appear on Iowa ballots this November. At this writing, no one seems to be organizing any effort to vote them off the bench. Iowa’s anti-retention campaigns in 2010 and 2012 were well under way by the end of August, but the social conservatives who spearheaded those efforts have shown no interest in repeating the experience.

The “barrage” of television commercials promoting U.S. Senator Chuck Grassley’s re-election began a few days ago. The senator’s campaign stayed off television for most of the summer following short buys for two commercials in late May and early June.

In style and content, the new 60-second ad resembles the first commercials Grassley ran during the 2010 general election campaign. The focus is on the senator’s personal qualities and work ethic, not policy accomplishments. The viewer hears about Grassley’s past work in factories as well as on the farm, his near-perfect attendance for Senate floor votes, and his commitment to visiting all 99 counties every year. Finally, as Iowa politics watchers have come to expect, the ad includes footage of Grassley mowing his own lawn, using his “cheap” invention of two push mowers attached to the back of a riding mower.

Democratic U.S. Senate nominee Patty Judge took the fight to 36-year Senator Chuck Grassley in her campaign’s first two general election television commercials, launched on Tuesday. Both 30-second spots assert that Grassley has “changed” during his long tenure in Washington. One spot features Judge delivering the message alongside a cardboard cutout of the incumbent. A string of “ordinary Iowans” question the cardboard Grassley during the other ad. Scroll down for videos and transcripts.

Grassley hasn’t run any commercials since the two ads his campaign aired before the June primary, which Bleeding Heartland analyzed here and here. I’m surprised he didn’t prepare a spot to run during the Rio Olympics, after reporting more than $1.2 million in contributions during the second quarter and nearly $6 million cash on hand as of June 30. Judge’s campaign raised $347,707 during the second quarter and had only $228,292 cash on hand at the end of June.

Three of the four Iowa polls released this month showed Grassley’s support barely above 50 percent; Judge was running 9 or 10 points behind. The most recent survey, conducted by CBS/YouGov, found Grassley leading Judge by only 45 percent to 38 percent. An incumbent polling below 50 percent traditionally signals an opening for the challenger.

But contrary to KCRG’s misleading headline and write-up, a 45-38 lead is not a “statistical tie.” The margin of error of plus or minus 4 percent in CBS/YouGov’s poll means that assuming professional sampling methods, there’s a 95 percent chance that Grassley’s support is between 41 and 49 percent, and that Judge’s support is between 34 and 42 percent. In other words, Grassley is extremely likely to be ahead if CBS/YouGov’s respondents are representative of the likely voter universe. He’s just not dominating the race by the kind of margins he’s enjoyed over previous Democratic opponents.

Over the weekend, the Des Moines Register’s Jason Noble reviewed data from earlier re-election campaigns pointing to Grassley’s strong performance among no-party voters, as well as his “crossover appeal” for thousands of Iowa Democrats.

Today Quinnipiac supplemented its latest poll on the presidential race in Iowa with findings about Senator Chuck Grassley’s campaign against Democratic challenger Patty Judge. Key graphs from the polling memo:

The 51 percent to 42 percent lead for Grassley is remarkably close to the 52-42 gap in last week’s polls by Suffolk University and Marist for NBC and the Wall Street Journal.

I infer that polls from earlier this summer, showing Grassley below 50 percent and leading Judge by just 7 points, slightly understated his lead. One of those polls looked like a outlier in general. Two of the surveys were conducted by Public Policy Polling, which did some work for the Judge campaign before the Democratic primary.

That’s not to say that Judge can’t make this election more competitive–only that she can’t wait around for the race to fall into her lap. She’s losing men by a lot and isn’t making up for it among women voters. She hasn’t held many public events this summer and needs to campaign more aggressively over the next two and a half months. In addition to improving her name ID, Judge has to give Iowa voters a reason to fire Grassley after so many years of public service. The obvious issue, the one she has vowed to hammer home since the day she announced her campaign, is the Senate Judiciary Committee chair’s refusal to hold confirmation hearings for Judge Merrick Garland. Iowans don’t support Grassley’s stance on the U.S. Supreme Court vacancy, but it will take more work to convince enough of them to send the senator into retirement for that reason.

The Democratic Senatorial Campaign Committee put their thumb on the scale for Judge before the Democratic primary, but national strategists have quite a few more promising pickup opportunities than Iowa at present. The DSCC won’t come in with big money here unless the polling starts to show Grassley more vulnerable than he now appears.

A Calhoun County judge has dismissed a short-lived criminal case that never should have been filed. Homer Martz was arrested last week and charged under Iowa’s flag desecration statute, because he “flew a U.S. flag upside down under a Chinese flag.” An upside-down flag is a widely recognized distress signal. Martz was protesting the Dakota Access (Bakken) pipeline, which will run near his Calhoun County home.

Trouble is, U.S. District Court Judge Robert Pratt ruled in December 2014, “Conduct involving the American flag has long been recognized by the United States Supreme Court as expressive communication that falls within the protection of the First Amendment.” Click here for the full opinion in that case, brought by the American Civil Liberties Union of Iowa on behalf of Westboro Baptist Church members who had dragged the flag on the ground while trying to disrupt military funerals.

Word of that court decision didn’t reach law enforcement in Calhoun County. David Pitt reported for the Associated Press on August 15,

Calhoun County Attorney Tina Meth Farrington filed a motion to dismiss the charges Monday, saying that she read the 2014 federal ruling and concluded she shouldn’t pursue the charge.

“The Legislature should take immediate action to repeal this law so that other citizens and law enforcement are not caught in this type of situation again,” she said.

A judge approved the motion Monday afternoon.

Calhoun County Sheriff William Davis said at the time Martz was arrested, he and the two arresting officers were unaware the law had been struck down.

When I was growing up, flag protection laws and constitutional amendments were a salient topic, as Republicans exploited a tiny number of flag-burners on the left in search of a wedge to use against Democrats. In recent years, some conservatives have displayed upside-down flags to protest President Barack Obama or his policies. On a busy corner in Windsor Heights, an upside-down flag flew for several weeks in late 2014, presumably to communicate the homeowner’s view of the president’s executive orders on immigration policy.

We can debate whether an unconventional flag display is an effective tool for political persuasion. But no matter how deeply offensive the message may be to some Americans, there is no legal recourse against those who use or abuse a flag to make their point.

As public sector bad behavior goes, this example may not be as repulsive as a member of Congress from Iowa displaying a Confederate flag on his desk, but prepare to be disgusted by this July 13 story from the Cedar Rapids Gazette’s Vanessa Miller:

First-person accounts of politically-oriented events are always welcome here. Thanks to IowaBadger for this perspective. -promoted by desmoinesdem

Chief Justice Mark Cady’s leadership of the Iowa Supreme Court has been bookended by two major cases. First came his unanimous majority opinion in the Varnum v. Brien decision recognizing marriage equality under the Iowa Constitution, resulting in the defeat of then Chief Justice Marsha Ternus (and two other justices) in the 2010 retention election, and Cady’s elevation to Chief Justice. Then, several weeks ago, was his 4-3 majority opinion in Griffin v. Pate, deciding that the Iowa Constitution’s prohibition against voting by anyone who has committed an “infamous crime” bars anyone with a felony conviction from voting, absent a restoration of voting rights from the governor.

Yesterday, the Des Moines Register held an event entitled “The Cady Court At Five,” which gave five panelists the opportunity to talk about both cases, and how the court has gotten from one to the other. Anyone hoping for post July 4th fireworks would have been disappointed, and anyone hoping for definitive answers will have to heed desmoinesdem’s post from yesterday recognizing that we will only understand Justice Cady’s rationale for his vote in Griffin and its seeming inconsistency with his previous opinion in Chiodo v. Panel when he’s interviewed about it years down the road. But for those of us who follow the Iowa Supreme Court closely, we did gain some insight into the Chief Justice’s thinking and what that might mean for future decisions.

I don’t usually write posts like this one.

Check that: I don’t think I’ve ever written a post like this one.

I’m making an exception because the question has been nagging at me since the Iowa Supreme Court announced its 4-3 decision in Griffin v Pate two weeks ago today, and because a number of people who share my interest in felon voting rights have asked for my opinion.

Only Chief Justice Mark Cady knows the answer, and we won’t hear his side of the story until he writes his memoirs or speaks to some interviewer in retirement.

So with no claim to telepathic powers and full awareness that my analysis may therefore be flawed, I will do my best to understand why the author of the 2014 opinion that inspired Kelli Jo Griffin’s lawsuit ultimately decided our state constitution “permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship.”

The Iowa Supreme Court has rejected a lawsuit challenging state policy on disenfranchising all felons. Four justices found “insufficient evidence to overcome the 1994 legislative judgment” defining all felonies as “infamous crimes,” which under our state’s constitution lead to a lifetime ban on the right to vote or run for office. Chief Justice Mark Cady wrote the majority ruling, joined by Justices Bruce Zager, Edward Mansfield, and Thomas Waterman. They affirmed a district court ruling, which held that having committed a felony, Kelli Jo Griffin lost her voting rights under Iowa law.

Justices Brent Appel, Daryl Hecht, and David Wiggins wrote separate dissenting opinions, each joined by the other dissenters. I enclose below excerpts from all the opinions, along with early political reaction to the majority ruling and a statement from Griffin herself.

The American Civil Liberties Union of Iowa filed the lawsuit on behalf of Griffin in November 2014, seven months after an Iowa Supreme Court plurality had stated, “It will be prudent for us to develop a more precise test that distinguishes between felony crimes and infamous crimes” that disqualify Iowans from voting.

Three of the six justices who participated in that 2014 case decided Griffin v. Pate differently. In Chiodo v. Section 43.24 Panel, Cady wrote and Zager joined the plurality opinion, which left open the possibility that not all felonies rise to the level of infamous crimes. Wiggins dissented from the Chiodo plurality, saying the court should not rewrite “nearly one hundred years of caselaw” to “swim into dangerous and uncharted waters.”

All credit to Ryan Koopmans for pointing out in March that given how quickly the court had decided Chiodo, “Having had more than a couple days to think about it, some of the justices could easily change their mind.” The justices were on a compressed schedule in Chiodo because of the need to print ballots in time for the early voting period starting 40 days before the 2014 Democratic primary. Ned Chiodo was challenging the eligibility of Tony Bisignano, a rival candidate in Iowa Senate district 17.

Side note before I get to the key points from today’s decisions: An enormous opportunity was missed when the state legislature did not revise the 1994 law defining infamous crimes between 2007 and 2010, when Democrats controlled the Iowa House and Senate and Chet Culver was governor. The issue did not seem particularly salient then, because Governor Tom Vilsack’s 2005 executive order had created a process for automatically restoring the voting rights of most felons who had completed their sentences.

But Governor Terry Branstad rescinded Vilsack’s order on his first day back in office in January 2011. During the first five years after Branstad’s executive order, fewer than 100 people (two-tenths of 1 percent of those who had been disenfranchised) successfully navigated the process for regaining voting rights. I consider the policy an unofficial poll tax, because getting your rights back requires an investment of time and resources that most ex-felons do not have. Today’s majority decision leaves this policy in effect, with a massively disproportionate impact on racial minorities.

Today Public Policy Polling released results from six news polls of battleground states, conducted on behalf of Americans United for Change and the Constitutional Responsibility Project. The full results from the Iowa survey are here (pdf). Key findings: only 43 percent of respondents approve of Senator Chuck Grassley’s job performance, while 40 percent disapprove and the rest are unsure. If Iowa’s U.S. Senate election were held today, 46 percent of respondents would vote for Grassley, 39 percent for Democrat Patty Judge, and 14 percent would be undecided. In the presidential race, 41 percent of respondents support Hillary Clinton, 39 percent Donald Trump. After the jump I’ve enclosed highlights from Tom Jensen’s polling memo.

Another PPP poll taken earlier this month also found Grassley below 50 percent and only seven points ahead of Judge. No public poll released in 2010 ever found the senator so narrowly leading his Democratic challenger Roxanne Conlin. Republicans are likely to discount today’s survey, because it was commissioned by progressive advocacy groups. I am reserving judgment until I see other pollsters test these Iowa races. That said, the PPP questionnaire showed no sign of “priming” voters to evaluate Grassley or Trump on any particular issue. Respondents were asked about job approval and candidate preferences before answering questions related to the U.S. Supreme Court vacancy. By the way, 64 percent of respondents support Senate hearings for Judge Merrick Garland, and only 35 percent trust Donald Trump to pick a Supreme Court justice.

PPP surveyed 897 registered Iowa voters on June 22 and 23, producing a margin of error of plus or minus 3.3 percent.

UPDATE: Added below Judge’s letter to Grassley, asking for four televised debates and one radio debate.

In what has been called the most important abortion rights case for many years, the U.S. Supreme Court today struck down a 2013 Texas law that had forced more than 20 abortion clinics to close. Writing for the 5-3 majority in Whole Woman’s Health v. Hellerstedt, Justice Stephen Breyer determined, “Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution.”

Justices Anthony Kennedy, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg joined Breyer’s opinion. A succinct concurrence by Ginsburg noted, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements. […] Given those realities, it is beyond rational belief that [Texas law] H.B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”

As Alexa Ura explained at Texas Tribune, today’s decision will not automatically reopen the shuttered Texas clinics. But it could lead to similar laws being struck down in 23 other states, shown on maps in this post by Sarah Kliff and Sarah Frostenson.

Iowa law does not place such restrictions on abortion providers, nor have they been the focus of recent legislative efforts by anti-abortion state lawmakers. But today’s U.S. Supreme Court decision reminded me of the unanimous Iowa Supreme Court ruling from June 2015, which used the same reasoning to reject a state ban on the use of telemedicine for abortion. Just as Iowa Supreme Court justices found no evidence suggesting that women’s health or safety would benefit from being in the same room as a doctor when taking a medication, Breyer’s opinion found nothing in the record supported the claim that the Texas regulations advanced the state’s “legitimate interest in protecting women’s health”; on the contrary, “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”

I sought comment today from Governor Terry Branstad and all members of Iowa’s Congressional delegation, as well as the challengers who had not already released statements on the ruling. I will continue to update this post as needed.

The excellent lead editorial in today’s Des Moines Register reminded me of a topic I didn’t manage to cover during the run-up to last week’s primary: the coming belt-tightening in Iowa’s judicial branch, which will affect thousands of Iowans who use the court system.

As with the under-funding of K-12 schools and higher education, the “crisis” in the judiciary is happening because state legislators and Governor Terry Branstad keep approving and extending unaffordable business tax breaks.

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

Prestage Farms didn’t get the incentives package it wanted from Mason City, but the company is actively seeking other communities in Iowa willing to offer tax breaks in exchange for a $240 million pork processing plant. Unfortunately, the construction of that and other proposed new plants “could push some older plants in Iowa and Nebraska to close,” Donnelle Eller reported for the Des Moines Register on Friday. I assume Governor Terry Branstad’s administration will count the jobs created in the new facilities but not the jobs lost if and when plants close if Perry (Dallas County), Columbus Junction (Louisa County), and Denison (Crawford County).

According to a new report by the Brennan Center for Justice, white males comprise about 37.5 percent of the U.S. population but 66 percent of appellate state court judges. Currently five men (four white, one Asian-American) and four women (three white, one Asian-American) serve on the Iowa Court of Appeals. All seven Iowa Supreme Court justices have been white men since 2011. No non-white judges have ever served on our state’s high court, and only two women have done so. Governor Terry Branstad appointed Linda Neuman to the Supreme Court in 1986; she served until her retirement in 2003. Branstad appointed Marsha Ternus in 1993; she became chief justice in 2006, an office she held until Iowans voted against retaining her and two other justices in 2010.

Following those retention elections, the State Judicial Nominating Commission recommended nine candidates to fill the three Supreme Court vacancies. Twelve women were among the 60 candidates who applied to serve, but only one woman ended up on the short list: a University of Iowa professor whom Branstad would never appoint. I suspect some commissioners passed over several women with strong qualifications, hoping to make Branstad look bad by picking an all-male trio of justices.

Diversity improves the judiciary, so in theory, I would like to see more gender and racial balance on the Iowa Supreme Court. Thinking pragmatically, I am in no hurry to give the governor another high court vacancy to fill, especially now that he has appointed a bunch of conservatives to the State Judicial Nominating Commission, which reduces the applicant pool to a few finalists. Some important cases in recent years have led to 4-3 split decisions. On several occasions–relating to open meetings law, solar power project financing, a key administrative rule on water quality, and multiple cases about juvenile sentencing–the three dissenters were Branstad’s 2011 nominees. Three justices are up for retention this November. They won’t be ousted because of the 2009 Varnum v. Brien case, because LGBT marriage equality is now settled law. However, I’m concerned anti-retention forces could exploit a backlash against a possible divided court ruling to expand felon voting rights. The Supreme Court is expected to announce a decision in the Griffin v. Pate case on felon disenfranchisement later this month.

Speaking of white male judges, mass outrage over the light sentence given to convicted rapist Brock Turner seems to have been the talk of everyone’s town this past week. The victim’s powerful impact statement, Vice President Joe Biden’s open letter to the victim, and many other reactions to the case have gone viral.

On the plus side, the Brock Turner case has raised awareness about rape culture, victim-blaming, and judges empathizing with wealthy white male defendants. One of the best commentaries I’ve read on the sentencing was by California defense attorney Ken White. He explained why Turner is the “sort of defendant who is spared ‘severe impact.’”

But some sexual assault survivors have found it overwhelming to see reminders of their worst experiences all over their social media feeds, day after day. The letter from the rapist’s father may have struck a sympathetic chord with the sentencing judge but was painful for many women to read. (One friend: you can tell that guy’s never been on the receiving end of “20 minutes of action.”) If news about the Stanford rape case is triggering traumatic memories for you, Peter Levine’s work on healing trauma may be helpful.

The Iowa Utilities Board voted today to allow Dakota Access LLC to begin construction of the Bakken pipeline on Iowa land that is not subject to the federal permitting process and where the company has obtained easements from landowners. The decision marks a shift from the stance the board took when approving the pipeline proposal in March.

Though presumptive Republican presidential nominee Donald Trump says something outrageous on almost a daily basis, I can’t get over his incredibly offensive comments this week about U.S. District Court Judge Gonzalo Curiel. On Thursday he said out loud that a judge should not hear the case involving alleged fraud by one of his companies, because Curiel’s “Mexican heritage” creates “an absolute conflict.”

Trump doubled down in an interview with CNN’s Jake Tapper yesterday. Media Matters posted the partial transcript, and I’ve enclosed excerpts below. Trump repeatedly asserted he has been “treated very unfairly” by Judge Curiel, because “I’m building a wall” along the Mexican border. He called Curiel “Mexican” even though the judge is a native-born U.S. citizen and repeatedly said the judge is “proud of his heritage,” as if that should be disqualifying. He also claimed the case involving Trump University should have been over two years ago–but if that’s the case, what does the wall have to do with it? Trump only started talking about the border wall last year, as a presidential candidate.

I’ve never heard Republican strategist Ana Navarro sound as angry as she did while talking about these comments on CNN yesterday. Her kicker: “what he is doing is disgusting. I am livid about it, and if this is his strategy to win over Hispanics, he’s got a hell of a wake-up call coming to him come November.”

In early 2013, the Republican National Committee published its Growth & Opportunity Project, better known as the so-called “autopsy” on Mitt Romney’s failed 2012 presidential campaign. A key point in that document concerned the need for Republicans to do a better job appealing to Latino voters. It’s hard to conceive of a candidate more alienating to that demographic than Trump. This week, Jonathan Martin and Alexander Burns reported for the New York Times that Ruth Guerra is resigning as head of the RNC’s Hispanic media relations because she did not want to work for Trump. Adrian Carrasquillo reported for Buzzfeed that Guerra’s replacement Helen Aguirre Ferré has been “very critical of Trump in a multitude of Spanish-language interviews” and wrote in now-deleted Tweets that she was #NeverTrump.

Every Iowa Republican who has promised to support Trump should be held accountable for the GOP standard-bearer’s bigoted view of a federal judge. Let’s start with Senator Chuck Grassley, who is preventing President Barack Obama from filling a U.S. Supreme Court vacancy in the hope that Trump will be able to name Justice Antonin Scalia’s successor. Does Grassley think whole ethnic groups should be disqualified from hearing certain kinds of cases?

UPDATE: Several prominent Republicans have condemned Trump’s remarks about Curiel, Dan Balz reported for the Washington Post. One of them was Newt Gingrich: “I don’t know what Trump’s reasoning was, and I don’t care, […] His description of the judge in terms of his parentage is completely unacceptable.” Maybe a Trump/Newt ticket isn’t the perfect match I thought it would be. LATER UPDATE: On June 6 Trump said on Fox News, “as far as Newt is concerned, I saw Newt, I was surprised at Newt, I thought it was inappropriate what he said.”

SECOND UPDATE: Grassley didn’t condemn Trump’s remarks during his meetings in meetings in three towns on June 3 as part of his 99-county tour. Asked to comment by Pat Rynard, Grassley said, “It would help him very much to be elected President of the U.S. if he would be a little more mild in his demeanor.” In other words, the chair of the Senate Judiciary Committee has nothing to say about the substance of Trump’s beliefs about a federal judge’s ethnicity as disqualifying. But Grassley wishes Trump would display a different “demeanor” to improve his chances of winning the November election. Weak.

At Grassley’s Humboldt even, he dodged a question from someone else about Trump’s comments: “And the other point your brought up about what he says about a judge, I’ve already answered that–there’s a process for anybody that doesn’t like the judge you have, you think that judge isn’t going to be fair, you can file a petition. And if you file a petition that a judge should get out, and that judge says you shouldn’t get out, then you’ve got a right to appeal that to a higher court and get fair judgment that way.” Again, he did not address the central issue: the Republican candidate believes a judge whose parents came to this country from Mexico cannot be impartial.

Meanwhile, Trump refused to back down during a June 5 appearance on the CBS show “Face the Nation.” Now he says it’s “common sense” that being “proud of his heritage” is why Judge Curiel “not treating me fairly.” Furthermore, Trump told John Dickerson, it’s “possible” that a Muslim judge also would not be able to treat him fairly in court.

THIRD UPDATE: Added below some of Governor Terry Branstad’s outrageous comments on the story.

FOURTH UPDATE: Grassley spoke further about the subject to Roll Call’s Bridget Bowman. Excerpts are below.

A retired University of Iowa employee has filed suit to nullify last year’s hiring of University President Bruce Harreld, on the grounds that five members of the Iowa Board of Regents violated the state’s open meetings law, Ryan Foley reported yesterday for the Associated Press.

I enclose below more background on the case as well as the full text of the plaintiff’s court filing.

Owners of two farms in Cherokee County filed lawsuits on May 20 seeking to block the Texas-based oil company Energy Transfer Partners from seizing their land for the Dakota Access (Bakken) pipeline, William Petroski reported for the Des Moines Register. I enclose excerpts from his story below.

Like a separate lawsuit filed in Polk County last month, these legal claims are based on a 2006 Iowa law, which was designed to protect farmland from being condemned for private development. The plaintiffs argue the Iowa Utilities Board erred when it authorized a private company that is not a utility to use eminent domain.

Regardless of how district courts decide these claims, the Iowa Supreme Court will likely be the final voice on whether state law allows the use of eminent domain for this project.

Dakota Access started Bakken pipeline construction in North Dakota, South Dakota, and Illinois this week, but the Iowa Utilities Board denied the company’s request to start building here. O.Kay Henderson reported for Radio Iowa that the board’s legal counsel noted the oil company “has not filed all the necessary permits and associated verifications to begin construction.” Although the board approved the permit to build the Bakken pipeline in March, as did the Iowa Department of Natural Resources, the Army Corps of Engineers has not yet approved permits for portions of the pipeline that would cross federal land.

Brian Morelli and Rod Boshart reported for the Cedar Rapids Gazette on the Private Property Rights Coalition’s work to educate landowners along the pipeline route about the eminent domain process and “legal options if they refuse to voluntarily sign easement agreements with the oil company.” One of that group’s leaders is Keith Puntenney, who has not signed an easement for his farmland in Boone and Webster counties. Puntenney is also the Democratic challenger to State Senator Jerry Behn in Iowa Senate district 24.

More resources for landowners and citizens who oppose the pipeline project are available on the website of the Bakken Pipeline Resistance Coalition, uniting more than two dozen Iowa non-profit organizations. I expect Bakken opponents to make their presence known when U.S. Senator Heidi Heitkamp of North Dakota comes to Des Moines as the featured guest for the Iowa Democratic Party’s Hall of Fame event next month.

Representative Steve King is “not ready” to endorse Donald Trump for president yet, he told CNN’s Wolf Blitzer on May 17. The seven-term Republican who represents Iowa’s fourth district was Senator Ted Cruz’s top surrogate here before the Iowa caucuses. Speaking to the Des Moines Register earlier this month, King indicated that he would be inclined to support Trump if the billionaire becomes the Republican presidential nominee in July. At that time, King said, “I’m keeping my powder dry and I want to see what Donald Trump has to say. This is a difficult thing for a lot of people to swallow, but I don’t want to encourage them to jump on the Never Trump bandwagon and I don’t want to encourage an alternative candidate.”

During yesterday’s CNN interview, King spelled out more clearly what needs to happen for him to endorse Trump’s candidacy.

Last week, Governor Terry Branstad’s office rolled out a new “streamlined application form for those seeking a restoration of their voting rights,” so that “Iowa’s already simple voting rights restoration process will become even more efficient and convenient.”

“Simple,” “efficient,” and “convenient” wouldn’t be my choice of words to describe a process used successfully by less than two-tenths of 1 percent of affected Iowans since Branstad ended the automatic restoration of voting rights for felons five years ago. The governor’s first stab at simplifying the system in December 2012 did not significantly increase the number of Iowans applying to get their rights back. Three years after that change, fewer than 100 individuals out of roughly 57,000 who had completed felony sentences since January 2011 had regained the right to vote.

The new double-plus-streamlined process seems unlikely to produce a large wave of enfranchised Iowans, because it leaves intact major barriers.

The latest announcement looks like an attempt to convince Iowa Supreme Court justices that they need not intervene to give tens of thousands of felons any realistic hope of exercising a fundamental constitutional right again.

Iowa Secretary of State Paul Pate is a defendant in Kelli Jo Griffin’s lawsuit claiming Iowa violates her constitutional rights by disenfranchising all felons. The Iowa Supreme Court heard oral arguments in the case on March 30. Justices are expected to decide by the end of June whether to uphold the current system or declare that Iowa’s constitutional provision on “infamous crimes” should not apply to all felonies.

Defendants typically refrain from commenting on pending litigation, but during the past three weeks, Pate has carried out an extraordinary public effort to discredit the plaintiffs in the voting rights case. In his official capacity, he has addressed a large radio audience and authored an op-ed column run by many Iowa newspapers.

Pate amped up his attack on “the other side” in speeches at three of the four Iowa GOP district conventions on April 9. After misrepresenting the goals of Griffin’s allies and distorting how a ruling for the plaintiff could alter Iowa’s electorate, the secretary of state asked hundreds of Republican activists for their help in fighting against those consequences.

At a minimum, the secretary of state has used this lawsuit to boost his own standing. Even worse, his words could be aimed at intimidating the “unelected judges” who have yet to rule on the case. Regardless of Pate’s motives, his efforts to politicize a pending Supreme Court decision are disturbing.

Grassley has long used the idea that the U.S. Court of Appeals for the D.C. Circuit doesn’t need more judges as an pretext for not confirming Democratic presidents’ nominees to the “second-most-powerful court” in the country.. -promoted by desmoinesdem

jiu jitsu politics 101

I know we’re all getting upset over the stalled Supreme Court nomination of Merrick Garland. President Obama is trying to get things done and the Republican’ts won’t let him. It’s unconscionable, it’s unAmerican and pretty damn unctuous.

But consider this… Why would BO pick this (conservative but) consistently fair guy to the court knowing that the petulant children on the Hill will sooner pass a kidney stone than confirm his pick for anything other than…well, anything?

I didn’t understand until I read this piece from Reuters that reminded us Garland and Grassley have some ‘history’ I hadn’t seen before.

Seven years have passed since the Iowa Supreme Court struck down our state’s Defense of Marriage Act. The Republican-controlled Iowa House failed to approve a constitutional amendment to overturn that court ruling more than three years ago. Fewer than a quarter of GOP state representatives were willing to co-sponsor the marriage amendment in 2015. Even if Iowa lawmakers tried to turn back the clock on marriage equality, the effort would be futile, since the U.S. Supreme Court ruled last year that all states must recognize marriages between same-sex couples.

Nevertheless, one Iowa House Republican won’t let this fight go. Today he seized on an unusual and futile way to register his discontent with the Iowa Supreme Court’s Varnum v Brien decision.

For six years running, the Democratic-controlled Iowa Senate has confirmed almost all of Republican Governor Terry Branstad’s nominees unanimously or nearly so. But every year, one or two Branstad nominees don’t get through. On Thursday Dr. Mariannette Miller-Meeks became the first (and probably the only) nominee to fail an Iowa Senate confirmation vote this year.

Pipes intended for use in the Dakota Access pipeline being stored in Jasper County, Iowa during 2015. Photo provided by Wallace Taylor, used with permission.

The Iowa Utilities Board issued a permit for the Dakota Access (Bakken) pipeline on April 8, after declaring that Dakota Access LLC “has substantially complied with the requirements” of the board’s March 10 order. The same day, a group of agricultural landowners filed a lawsuit challenging the board’s use of eminent domain for the pipeline, intended to carry oil roughly 400 miles across eighteen counties from northwest to southeast Iowa. Litigation grounded in environmental concerns about the pipeline is expected later this year.

Follow me after the jump for more details on the land use lawsuit and ongoing efforts to block the pipeline at the federal level.

Photo of Iowa stream courtesy of InIowaWater.org, a project of the Environmental Law & Policy Center

By entering the U.S. Senate race, former Lieutenant Governor Patty Judge ensured that environmental issues would become salient for many Iowa Democrats trying to choose among the four candidates running against Senator Chuck Grassley.

During the past two weeks, Judge has sought to minimize the daylight between herself and State Senator Rob Hogg on the need to address water pollution. But Hogg, widely considered Judge’s leading rival for the nomination, has made environmental concerns a big part of his pitch to Democrats.