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Judicial Retention in Iowa

posted on October 29, 2010

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Turning it over. To some that's an admonition to turn over the ballot, then indicating whether or not to retain three Iowa Supreme Court Justices. For others turnover means replacing those justices. We’re getting divergent views from Iowa for freedom activist Bob Vander Plaats and former Iowa Supreme Court Justice Mark McCormick on this edition of Iowa Press.

Borg: Iowa doesn't elect judges. But voters do in Iowa, in regular cycles, have a say in whether or not to retain judges on the bench. The process is usually somewhat benign, usually far overshadowed by intense campaigning for political offices, but not this time around. There’s a campaign, some might call it passionate pleas, to vote no on retaining three Iowa Supreme Court justices who are up for voter decisions on the general election ballot this session. It’s rooted in last year's Supreme Court decision declaring Iowa’s law defining marriage as between a man and a woman as unconstitutional. The court's decision was unanimous but in the retention rotation, only there of the seven justices are up for retention decisions in this election cycle. Former republican gubernatorial candidate Bob Vander Plaats of Sioux City chairs Iowa for Freedom. That’s a group advocating replacing the three justices. Des Moines attorney Mark McCormick, a former Iowa Supreme Court Justice himself, is involved in a number of organizations urging a yes vote to retain the three justices. Gentlemen, welcome to Iowa Press. We expect a lively discussion.

McCormick: Thank you.

Vander Plaats: Thank you for having us.

Borg: And across the table we have Associated Press Senior Political Writer Mike Glover and Radio Iowa News Director Kay Henderson.

Glover: Mr. Vander Plaats, let's start with you. You want to remove three justices of the Iowa Supreme Court because they voted to legalize gay marriage. At what point do you draw the line? What about the guy who loses a house in a divorce? Should you go after that judge? Where is the line?

Vander Plaats: Where we draw the line is the constitution, Mike. A lot of people say April 3, 2009, this is all about marriage. Marriage happened to be the issue here. What happens is that this court way outside its constitutional boundaries. They legislated from the bench, they governed from the bench, they attempted to amend the constitution from the bench. They handed out rights that other people could never have imagined. This court simply went too far. If they'll do this to the institution of marriage, I’m telling you every one of your freedoms is up for grabs. That’s why we're going to vote no on November 2.

Glover: Mr. McCormick, to you there is retention system in Iowa for a reason. What’s wrong with voters having their say about whether or not they like these justices?

McCormick: First I’d like to thank Mr. Vander Plaats and his organization for featuring me in one of their attack ads. A friend of mine told me I looked like Clint Eastwood, and I was highly complimented.

Vander Plaats: Good. We’ll keep running it.

McCormick: There is nothing wrong with our system. We have a nonpartisan judicial selection and retention system, and I’d like to see it kept that way. I’d like to see politics kept out of it, so we don't have a system like many other states, including the states -- some of the judges or former judges who have come up here to campaign against our Iowa justices where money doesn't play such a big role. The system is one in which we have a separation of powers. A number of years ago, I represented a number of republican legislators, including Steve king, who challenged a gubernatorial executive order. And on a constitutional basis, one of our district courts sustained that challenge. I didn't hear any talk then about activist judges and judges out of control and accusing that judge of being a liberal judge.

Glover: But what's wrong with voters saying I don't like the way these justices have ruled so I’m going to replace them?

McCormick: Well, voters are certainly free to decide, and I hope that people do flip that ballot over and vote on this issue. The problem I have is with out-of-state one-issue special interest groups pouring hundreds of thousands of dollars into Iowa to attack the retention of these judges and apparently the retention of all 74 judges whose names are on the ballot this time. If they were successful, they would not only undermine our selection system, they would hurt the business climate in Iowa. They would hurt public safety in Iowa, and they would put this system that we have in jeopardy, or these folks will come back again if they're successful this time. And they leave Iowa after they've spent all this money here on these campaigns.

Borg: You had a response?

Vander Plaats: Well, there's a lot that Mr. McCormick said. First of all the separation of powers, we actually used that case against governor Vilsack as saying -- yeah, that's when governor Vilsack overstepped his bounds and we held him in check. Here a court way overstepped their bounds, and we're going to hold them in check. Mr. McCormick likes to point to out-of-state resources. This campaign is led by Iowans. I’m the state chair. We have a campaign manager from Iowa. We have -- this is one of the most organic campaigns I’ve ever been involved in. But before we go too far in out of state, the day after the April 3, 2009 opinion, Lambda Legal, which is not out of Iowa, it's out of Washington, D.C., said they've spent seven years with George Soros money, with Tim Gill coming into Iowa to target a very receptive activist court to do exactly what they did.

Borg: All right. You’re talking about money and advertising. I’m going to get it to that. Both sides of the question, whether or not to retain Supreme Court Justices -- Ternus, Baker, and Streit -- are buying advertising, as we just indicated, to persuade voters. We have a couple of those commercials now to show you. The first uses a familiar personality asking voters to retain the justices.

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 2000 feet away from a school or a child care center, protected Iowa’s 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.

Paid for by fair courts for us.

Borg: Kay, have you got some questions about that?

Henderson:Mr. Vander Plaats, another Bob Ray ad says that you shouldn't get rid of the justices over one bad call just as shouldn't get rid of a referee in a football game over one bad call. What’s your response to that?

Vander Plaats: Well, first of all, what's interesting to me -- and I have a lot of respect for governor ray, but he concedes they made a bad call. Here they didn't only make a bad call, they changed the rules of the game. When you change the rules of the game, the retention system is to hold them accountable. They did this to an institution we call marriage, one-man/one-woman marriage. That’s why we people woke up on April 4, 2009 and said what happened, our voice wasn't heard on this issue. And then we read the opinion and then we said, look, they legislated from the bench, they executed from the bench, they amended the constitution from the bench. This is an activist court on steroids. We need to hold them accountable. That’s why people around Iowa are standing up organically and saying we're voting no on these Supreme Court Justices. We’re going to have history made on November 2.

Henderson:Your organization has also accused the quote/unquote ruling class in Iowa of circling the wagons around the justices. One of the members of the group that is urging Iowans to vote yes on the justices is a former campaign person within your circle, Dan Moore. What’s your response to Dan Moore who says exactly the opposite of what you have just said?

Vander Plaats: I have a great respect for Dan Moore. They’re saying that Dan is not defending this opinion. Governor Ray is not defending this opinion. The ruling class is circling the wagons to protect the process, in which the Des Moines Register highlighted this week in a front page story, the process is out of whack: of the nominating commission, 12 democrats and 1 no-party affiliate; of the supreme court justices, 5 democrats. This is an activist court who took an activist initiative on their own to made law and to govern from the bench, and we're going to hold them in check.

Henderson: Mr. McCormick, there's another ad running on the radio in which congressman Steve King, who you've already mentioned on this program, says the court came up with an unimagined right. What is your response to that?

McCormick: Well, of course, it's not an unimagined right. And those who are attacking court for being activist ought to pay some attention to a study that was done and is done on a biannual basis by United States Chamber of Commerce, which from a business perspective evaluates the courts in each of our states. and Iowa has consistently, since this was first started by the U.S. chamber -- and there's certainly no more business friendly organization in the country -- has ranked in the top tier, the top ten now even in 19 -- excuse me, 2008, the court rating has improved so that one of the things they look at is the fairness and impartiality of the judges. And they rank Iowa in the top five in the country. And that's where we belong and that's why I say attacking our system is an attack or our business climate and it sends the wrong kind of message.

Vander Plaats: Here's the deal; we’re not attacking the system. We’re utilizing the system. The retention process is part of the system. But there we go again. We’re not defending the opinion. What I would argue to the business leaders -- I happen to be one -- if you let courts do this, this is how you'll lose your right-to-work status in the state of Iowa. Any controversial issue we start running through the court, and that's where every freedom comes up for grabs if you allow an out-of-control court to do what they did like they did on April 3.

Borg: I’m going to give you the opportunity to make that argument a little bit later, but I want to get to something Mr. McCormick is going to like a lot. He’s referred to it already. The second commercial uses a video clip by one of our guests today -- it is Mr. McCormick -- to argue against retaining the three justices.

Some in the ruling class say it's wrong for voters to hold Supreme Court judges accountable for their decisions.

There is no such thing as an activist judge.

When activist judges on Iowa’s Supreme Court imposed gay marriage, they were the only judges within 1200 miles to reach such a radical conclusion. If they can redefine marriage, none of the freedoms we hold dear are safe from judicial activism. To hold activist judges accountability, flip your ballot over and vote no on retention of Supreme Court justices.

Borg: Mike Glover?

Glover: Mr. McCormick, Iowa is one of a handful of states where courts have stricken down laws banning gay marriage. Has Iowa gotten out of the mainstream?

McCormick: I don't believe so. In fact, Iowa should be proud of our judicial system and our history over the years. I’ve been a lawyer in Iowa and judge over a fifty-year period, and I have appeared in courts all over Iowa, including our appellate courts as a lawyer. And I have the honor of serving -- that was a gubernatorial appointment by Governor Hughes in the district court and by Governor Ray -- to the Supreme Court. I think we have a wonderful system. This is a court that today filed decisions involving workers rights, involved in decisions affirming murder conviction, decided a case disciplining an attorney, and actually affirming the civil commitment of a sexual predator. This is the bread and butter business of our courts, and we need a stable court system. We ought not to be in the circus atmosphere where the retention of 74 judges is being challenged by these folks, not just these three Supreme Court Justices.

Glover: If Iowa is out ahead of the curve on same-sex marriage -- Iowa was out ahead of the curve on issues like voting rights, civil rights, women's rights. What’s wrong with the state being a leader in the issue of rights for people?

Vander Plaats: Let me answer that question in just a minute. I want to talk about this circus going. This circus is about we the people having a voice. This is how the constitution starts, we the people, a government of the people, by the people, for the people. And we get referred to as the mob! We get referred to as a circus. We get referred to as extreme. Seventy percent of the people believe the way we do. Eighty percent of Americans believe the courts have taken too much power. But going back to your point, Mike, you're right, Iowa has been a leader. The people of Iowa have been a leader in every one of those areas, not the courts. The courts only affirmed where the people of Iowa were. On marriage, however, the courts decided, you know what, we're going to go ahead, we're going to strike down one-man/one-woman marriage, we're going to replace things that have been deep in tradition, deep in law, and then say you know what, that doesn't matter, we're going to grant same-sex marriage, we're going to execute our own opinion, we're going to amend the people's constitution. The courts have gone too far here. We need to hold them in check.

Henderson:Let's just --

Borg: Mr. McCormick, a minute ago Mr. Vander Plaats referred to protecting the process. You didn't get a chance to respond to that, and I want to give you a chance before we invite Kay in.

McCormick: Well, the threat to the process is the involvement of the special interests in this heavily moneyed campaign against these justices. The problem -- the reason it undermines the process is that a constitutional system depends on judicial independence. It depends on the ability of judges to make unpopular decisions. I have never seen a judge in all of my experience in Iowa take that judge's personal ideology into account when making those decisions, and that's what these folks mean when they talked about activist judges. What they're really talking about is judges that they don't agree with because their personal ideology is different as a result in the case.

Borg: We need to get on here. Kay?

Henderson:Mr. Vander Plaats, earlier you said it was wrong for George Soros and Tim Gill, outside activists, to spend money in Iowa courts. If it's wrong for them, why is it right for the national organization for marriage and those groups to support this campaign ad?

Vander Plaats: First of all, let me correct you. I never said it's wrong. I said they were here doing that. So when they target outside money coming in -- I think the reason this campaign has received such national attention, it will have a ripple effect through the entire country about holding courts in check. The threat to the process which Mr. McCormick talks about has given the people a voice. We’re a government of the people, by the people, for the people. He says that's a threat to the process. As long as we can have our good old ruling class network, we're okay.

Henderson:You're associated with the Iowa family policy center. Its president sent out an e-mail suggesting all 74 judges who are on the ballot this year should be -- should not be retained, people should vote no. Do you share his view?

Vander Plaats: My only focus and Iowa for freedom's only focus is on three Supreme Court Justices. My public comment, my personal comments have been on all other judges, you need to do due diligence, you need to research, you need to discern, and then you need to cast your vote.

Glover: Mr. McCormick, educate us a little bit here. What happens on November 3 if these three justices are not retained? Mechanically what's the process from there?

McCormick: The process would be that the nominating commissions involved would be convened --

Borg: Right away?

McCormick: They could be convened right away in anticipation of the vacancies that would be affected.

Glover: Are they off the court the next day?

McCormick: No, no, at the end of the year. So they would be a process involved. If these folks are successful in removing all of the judges that they've identified in the robo calls, it's going to be a very complicated process. But nominations will be made under our nonpartisan system as before, and then the governor will select from the nominees.

Glover: The current governor or the next governor?

McCormick: It will depend on who's there and when the nominations are made.

Glover: So it would be possible that Governor Culver could make those appointments even if he loses.

McCormick: It is possible.

Glover: Mr. Vander Plaats, if you succeed in taking out these three Supreme Court Justices, will you go after the other four?

Vander Plaats: You know, we're focused primarily only on November 2 and these three justices. I believe the other four do need to be held accountable. Now, will that be Bob Vander Plaats leading the charge or Iowa for freedom leading the charge? I don't know. The nonpartisan commission that will appoint -- when the Des Moines Register says 12 are democrat and 1 is nonparty affiliate, that's not a nonpartisan commission like other commissions.  That’s a heavily partisan commission and that's why Iowa was targeted for this very issue.

Borg: Mr. McCormick, is that a flaw?

McCormick: I don't believe it is and I can speak -- I can speak as a person who was on the state judicial nominating commission for a six-year term, 1996 through 2001, and Gov4ernor Branstad then had appointed all of the non-lawyer members of the commissions. During that process, we nominated a number of judges for our appellate courts.

Borg: Would you ever look at changing it though?

McCormick: No. We have a nonpartisan system and my experience has been -- an observation has been that regardless of who has appointed the lay members to the commission, there is no partisan politics involved in the nomination of judges.

Glover: Mr. Vander Plaats, if the three justices of the Supreme Court are removed, you're going to have a four-member court at the end of the year probably with those vacancies not filled. Will that cripple the court and is that your goal?

Vander Plaats: Absolutely not. Our goal is to send a message to the courts that you need stay within your constitutional boundaries, you need to let the legislature make the law, let governor execute the law, and the people of Iowa to amend the Iowa constitution.

Glover: To be clear, the other four are in your target as well.

Vander Plaats: The other four may be in our target. I believe they need to be held accountable. I’m not saying I’m going to be the one leading that charge when they come up for retention.

Henderson: If you aresuccessful on November 2, is the next wave -- is the next step going after the system and electing judges in Iowa?

Vander Plaats: You know, that's what the others on this issue have said, you know we're just trying to attack the process. We’re trying to utilize the process, the retention system here. But I do believe, as Governor Branstad has said, the way we nominate judges has to be looked at. And I think the Des Moines Register did a great job -- and I don't always point out of Des Moines Register. They did a great job in unveiling the secrecy of the ruling class in yesterday's paper.

Henderson: So would you favor electing judges, or would you favor, as Governor Branstad did in the last debate here in Iowa Public Television studios, letting the governor appoint whomever he chooses in the same manner that the president does?

Vander Plaats: Well, first of all, I favor voting three justices off on November 2. And then if you want to talk about process, I, Bob Vander Plaats, nothing to do with Iowa for freedom, I would favor the governor appointment, the senate confirmation, and the people having a retention vote.

Glover: Mr. McCormick?

McCormick: Well, I favor our current system for all of the reasons that have been urged. I’ve been involved in it for all these many years. It keeps partisanship out of the appointment of judges and out of our courts.

Glover: I’m going put a smile on your face. What if you win this campaign and all three of these justices are retained?  Is that the end of what you see as a challenge to the court?

McCormick: Well, I think we always have to be vigilant in defending the independence of the judiciary, which is provided for in --

Glover: Does it worry you that he says he's going to go after the other four?

McCormick: Well, of course it worries me because I think if they're successful this time, there will be no end to it. They’ll come back and it's this single issue attack that's being made, which I think is a threat to a lot of things that Iowans treasure.

Borg: Let me ask, with that in mind, are you somewhat resentful that it has come to this? Could this have been alleviated, this or the resentfulness might come, if the democratic legislature had allowed the constitutional amendment to pass through the legislature and go to a vote of the people? Do you have some resentment?

McCormick: I’ll tell you, I think that that's the political process. We have a system under our constitution for amending it. And I think these folks who want to upset the rule should do what the Iowa Catholic Conference, for example, advocates, which is have a constitutional amendment made. And if the political process is difficult, that's because our framers intended the amendment of the constitution to be a difficult process. But there are other things that can be done. There is an issue on the ballot, for example, involving calling a constitutional convention. The fact is they aren't going to solve what they're complaining about by removing these three judges.

Vander Plaats: But I think the thing there is, Dean, is Mr. McCormick’s argument about the judiciary will lose its independence. They should lose their independence to make law, to govern, and to amend the constitution from the bench. In addition, Chief Justice Marsha Ternus, former Justice Robert Audi, all said, you know what, have a constitutional amendment four years from now, but in the meantime we're marrying same-sex couples without any executed law on the books. There’s no law in the legislature. The governor hasn't signed anything. The governor hasn't assigned an executive opinion on this issue.

Glover: What are you going to do if you lose? Is that the end of the campaign if you lose?

Vander Plaats: I don't know. We’re focused on winning. But I had a question asked to me like this, Mike, not to rephrase your question, but what does victory look like. As an educator I think we're ready to experience some victory. We’re discussing the constitution. We’re discussing separation of powers. The people are involved. They know what a retention vote it. Obviously real victory is if we remove all three of them, and that's what our goal and our hope is to do.

Henderson:Mr. McCormick, to you, what is your advice to judges who are up for retention in 2012? Should they start raising money now? Should they run campaigns for retention?

McCormick: I really am proud to be in the company of former Governor Ray and the others who are defending our system. And I think if there are additional challenges down the road that those of us that favor our current system and believe that the campaign against them is unwarranted and threatens to cripple our system, we'll be defending them again. I hope it doesn't happen that --

Glover: Haven't they already won --

McCormick: Pardon me?

Glover: Haven't they already won? We’re sitting here talking about it. We’re sitting here having a debate about judge campaigns, which we've never had before.

McCormick: Well, that's right. and I think it's a healthy debate from the standpoint of ventilating the issue of our system, which is really nonpartisan, contrary to all of these complaints --

Vander Plaats: And the Des Moines Register.

McCormick: The point is also that it's worked.

Borg: Kay --

Vander Plaats: Let me answer your question, though, Kay. The advice to the judges up in 2012: stay within your constitutional boundaries; don’t go outside and you won't have to worry about not being retained. It’s only when you go out -- everyone is saying they're trying to defend the process. They’re not defending the opinion. This opinion by constitutional scholars have looked at it and said --

Glover: So don't do anything you disagree with.

Vander Plaats: -- the worst opinion they've ever read.

Glover: So it all boils down to don't do something you disagree with.

Vander Plaats: No, don't disagree with Bob Vander Plaats, it's don't disagree with the constitution.

Henderson: And you were chuckling.

McCormick: Well, I just think it's amusing when Mr. Vander Plaats becomes the authority on what the constitution means and how it should be interpreted by our courts. They are vested under the constitution with that authority. They’re the folks that make the decisions about what the constitution means. And what they decided in that case -- and I think they were in good faith in making this decision. I see no evidence of personal ideology in making their decision. What they were deciding is whether or not that statute that was challenged in the case measured up to the requirements of the equal protection clause in our Iowa constitution. This is in the tradition of constitutional adjudication in Iowa.

Henderson:Mr. Vander Plaats, it will be no surprise to Iowans that you faced off against terry Branstad in the republican primary. He was the victor. He has said that he will not reveal how he will personally vote on this issue. Are you disappointed in his view on this issue?

Vander Plaats: I think that's up to him to decide. I do believe governor culver will lose election primarily because he did absolutely nothing when this opinion was handed out. Mr. McCormick talks about the judiciary having the power of the final authority. The constitution says we the people are the final arbitrators. That’s why we have a retention vote. Mr. Branstad, that's up to him. But I think people are looking for leaders to take stands today and people are going to be looking at him to take a stance on this issue.

Henderson:Mr. McCormick, let's boil it down to a key question. Do you think this is a referendum on gay marriage in the minds of people who will be flipping that ballot over?

McCormick: I believe that's what these folks attacking these three judges and the retention of other judges have in mind. But it can't be because it really is a referendum on our system and our method and the rule of law in Iowa.

Glover: Mr. Vander Plaats?

Vander Plaats: it is a referendum on freedom. Are we going to hand off tyranny to the next generation or liberty? Hamilton said the courts should be the least dangerous of the three branches. Why? Because they're dependent on the legislature for funding and to legislate their opinions and a governor to execute their opinions. In this case the legislature hasn't taken action, the governor hasn't taken action. Only tom miller has taken action, and that's why I believe he's going to get replaced by Brenna Findley on November 2.

Borg: Just about fifteen seconds for a very brief response.

McCormick: The interesting thing is the notion that somehow this interpretation of the constitution ought to determine the fate of these judges when the courts were simply, as they ordinarily do with all the bread and butter issues that are brought to them -- and Alexander Hamilton, just to point out, he was advocating lifetime tenure for judges, which is a very unpopular decision.

Borg: I have to say good-bye. Thanks for being with us today. A reminder that you can contact our Iowa Press staff directly using the mail address at the bottom of your screen right now. It’s We’d like to see your comments. Back next week same times. I’m Dean Borg. Thanks for joining us today.

Tags: Bob Vander Plaats campaign 2010 Democrats elections Iowa Iowa for Freedom Iowa Supreme Court Iowa Supreme Court Justices judges judicial retention Mark McCormick politics Republicans