DES MOINES, Iowa (AP) — Retired Supreme Court Justice Sandra Day O’Connor on Wednesday defended Iowa’s method of selecting judges and urged voters to reject an effort to remove three state Supreme Court justices who joined in a unanimous decision striking down a ban on gay marriage.
Speaking in Des Moines as part of a panel organized by the Iowa State Bar Association, O’Connor said voters shouldn’t punish judges when they disagree with their decisions.
“We have to address the pressures that are being applied to that safe place, the courtroom,” O’Connor said. “The judges should not be subject to retaliation.”
O’Connor was joined by business, labor and academic leaders for the panel discussion, aimed at preserving Iowa’s merit-based system of picking judges. Under Iowa’s process, which has been in place since voters approved a state constitutional amendment in 1962, nonpartisan panels nominate judicial candidates to the governor, who appoints judges. When their terms expire, judges opting to remain on the bench go on the ballot, giving voters the option of retaining them.
Many conservatives have harshly criticized Iowa’s process since the 2009 state Supreme Court ruled that a same-sex marriage ban violated the Iowa Constitution.
Conservative activist Bob Vander Plaats made the decision a key part of his failed run for the Republican gubernatorial nomination. He’s now leading an effort to remove three justices up for retention elections — Chief Justice Marsha Ternus and Justices David Baker and Michael Streit. He also wants to change the judge-appointment process. Ternus was appointed by Republican Gov. Terry Branstad while Baker was appointed by Democratic Gov. Chet Culver and Streit by Gov. Tom Vilsack, a Democrat.
O’Connor acknowledged the state was dealing with difficult issues but urged voters to retain the current system.
“Iowa is probably going through a stressful time right now,” O’Connor said. “Don’t throw out the system because you’re going through stress.”
O’Connor has long been an opponent of electing judges through popular votes, arguing that leaves judges vulnerable to political whims and interferes with the independence of the judiciary.
She also warned against using judicial retention elections as a tool to retaliate against judges when there’s disagreement about individual decisions. She noted that in other states, judges have been forced to raise millions of dollars in campaign donations — much of it from businesses that appear in court — to keep their jobs.
“It has eroded the faith of many of our citizens in the judicial system,” O’Connor said. “The health of the system is strongly effected by how we select our judges. Iowa has made a good choice.”
Ternus introduced O’Connor at the event, warning that the issue is about “fair and independent courts.”
Mike Petro, a vice president at the Washington-based public policy group Committee for Economic Development, said businesses don’t want judges who must campaign for office.
“Businesses want a fair and even playing field,” Petro said. “The stability of appointed courts has been good for business. “When candidates for judicial office are forced to raise funds, their impartiality can be in question.”
Jan Laue, the secretary/treasurer of the Iowa Federation of Labor, said workers don’t need judges who are reliant on campaign contributions, most of which would likely come from wealthy corporations.
“We believe our current system in Iowa works very well,” Laue said.
Vander Plaats said his position is being twisted.
He argued the Iowa justices should be ousted, not because of a single decision but because they abused their authority and mischaracterized the constitution, which he argues contains no language that requires the state to allow same-sex marriage.
“They completely went outside their jurisdiction,” said Vander Plaats. “You can’t allow a court to make law from the bench.”
He also said his effort doesn’t favor direct election of judges. Instead, he wants to model Iowa’s system after the federal system, allowing governors to appoint judges who would then be confirmed by the state Senate.
Allan Vestal, dean of the Drake University Law School, said Iowa’s system of retention elections was designed to protect against judges who show themselves to be clearly unfit. It wasn’t intended to oust those who make unpopular decisions.
“The retention vote was designed for a very limited purpose,” Vestal said. “Our judicial retention election is not a force to overturn any decision by the court.”
Vestal conceded that’s a tough case to make to voters in an emotionally charged atmosphere.
“This doesn’t lend itself to bumper stickers,” Vestal said.
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