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Iowa Supreme Court Chief Justice Mark Cady

posted on January 14, 2011

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The rule of law. Iowa Supreme Court Justice Mark Cady, defending judicial branch independence, says courts serve citizens by upholding the state constitution rather than public opinion. We’re questioning Chief Justice Mark Cady on this edition of Iowa Press.

Borg: Iowa's Chief Justice Mark Cady, delivering the annual State of the Judiciary message to the newly convened Iowa legislature this past week, devoted most of the speech to asserting the role of the court. That’s coming at a time when Iowa's Supreme Court is under duress. Voters in last November’s election decided not to retain the three justices who were up for retention decisions. And that leaves the court with four justices, and some legislators say those four should be impeached. The controversy is rooted in the court's unanimous decision declaring unconstitutional Iowa's law defining marriage as only for heterosexuals. Mark Cady is the Supreme Court’s new Chief Justice, replacing Marsha Ternus, who was one of the three justices removed from the court at the end of December. He’s been on the Supreme Court for twelve years. He wrote the controversial ruling on same-sex marriage. Justice Cady, thanks for being with us today.

Cady: Thank you and thank you for having me.

Borg: Across the table, two journalists that I think that you probably have seen around the Supreme Court from time to time, Associated Press Senior Political Writer Mike Glover and Radio Iowa News Director Kay Henderson.

Glover: Justice Cady, let's start with your speech this week. It certainly got an awful lot of attention. What were intending to accomplish with that speech? What was your goal?

Cady: Well, I knew there's just a lot on the minds of judges around the state, a lot on the minds of all Iowans and I had the responsibility of expressing to the legislature what the condition of the judiciary actually is. And part of the condition of our state judiciary relates to the retention election and now the clamor about impeachment. So I felt it was necessary for me to address those subjects in the context of trying to describe for Iowans just what our duties are, what our responsibilities are, so that we can all begin to have a little better understanding of the work we do and why we do it and the role we play in our society.

Glover: And what reaction have you gotten since you delivered the speech? There were some legislators who were critical of you, largely the same legislators who are critical of the court in general.

Cady: Well, I think judges are generally used to criticism in result -- in response to court decisions. but I think even more so that this whole thing just gives the court an opportunity to make itself more visible, more open, more transparent, because I’m really convinced, Mike, that the more Iowans can see their court in action and see it work, they're going to -- they'll be even more proud of what we have.

Glover: Was that speech the work of the four justices, or was it yours?

Cady: Well, it was -- it was my work. I -- I, of course, consulted with them, asked if they had any ideas and input. But I devoted quite a bit of time to putting those thoughts together because I knew it was an important moment for our message to be heard.

Borg: Is that a template now for something that you're going to continue to do. Do you intend now to -- you didn't before the November election. None of the justices did. Was that a wake-up call, and are you going to really be speaking out now? Was this just a template that we're going to see replicated elsewhere?

Cady: Well, if there's a template, I think it's going to revolve around our desire to try to open our courts up as much as we can to Iowans so that they can see it operate. And I don't know what the future is going to hold for the court system, but I do know the court system is going to be strong and maintain what it has been doing for Iowans for 170 years.

Borg: Well, let me ask this, have you four remaining justices, have you gotten together and say this is a wake-up call, we have to be speaking out? And do you think the other three are going to be doing the same thing that you did to the Iowa legislature?

Cady: Yeah, the retention election was a wake-up call. We approached that attention -- that retention election much like the judges in the judiciary has always approached things. We try to stay in the back, do our work, and do it in a competent, quiet way. Retention election revealed something else to us, and we have to make sure that something like that does not happen again, because it's very destructive to our goal and our mission and our duty and responsibility.

Glover: Are you comfortable in the position you're in right now? You’re in the midst -- the court is in the midst of a political fight. I’m sure you noticed a lot of the people who were jumping up and clapping were on the democratic side. A lot of the people that were sitting there stone faced were on the republican side. And the same political divisions that led to the ousting of three justices, you folks are in the middle of? Are you comfortable being there?

Cady: Well, the courts have often, Mike, been in the middle of controversies like this. Even the history of Iowa -- the proud history of Iowa shows that the courts are there. But we're there only because Iowans ask us to be there. There are serious issues that Iowans have that -- that we are required to take up when they bring them into our court system. And oftentimes those issues can involve very volatile questions, and this was certainly one of them.

Glover: Justice Wiggins is up in 2012. The other three justices are up in 2016. What’s your advice? Should they be going and hiring some political consultants, forming PACs, raising money?

Cady: Well, that may be one response from the last retention election. I don't think Iowans are going to enjoy if that's the path that we do follow. I don't know what another two years is going to hold. But if that indeed is what judges have to do to stay on the bench and perform their duties, then I’m sure that's the direction that this state will be going.

Glover: During your speech on Wednesday, you spent some time talking about the Varnum decision, the decision on same-sex marriage, which Dean alluded to at the beginning of the program. In retrospect do you regret issuing that decision?

 

Cady: Absolutely not. That decision was crafted with all of the energy, all the strength. Everything that we do as judges is in that opinion. Everything that Iowa is about is in that opinion.

Glover: Is there a danger of having permanent damage? I mean it's an important question. It’s an important civil rights question. But look at what the damage it's done to the court system. Is it worth it?

Cady: You know, when I think about that question, Mike, I think about that judges accept that as their role in society. Even a judge that makes a ruling in a criminal case that may result in the suppression of evidence may not be a popular decision, but judges make their decisions based upon the rule of law. And that's what their duty is, and that's the importance and the strength of all of our government.

Borg: Did you have another question, Mike?

Glover: No.

Borg: Well, I wanted to say, Justice Cady, we have a little clip of that speech to which we've been referring here this morning. Some of those analyzing Justice Cady's address to the Iowa legislature last Wednesday are calling it an eloquent lesson in civics.

Cady: Unlike our political institutions, courts serve the law -- they serve the law, not the interests of constituents, not the demands of special interest groups, and not the electorate's reaction to a particular court decision.  As far back as 1883, the Iowa Supreme Court made it clear that even unpopular rulings could not simply be suspended in time to await any future action. In its decision, the court said if courts could be coerced by popular majorities to disregard the constitution at any point in time, the constitutions would become mere ropes of sand and there would be an end of constitutional freedom. As we said in Varnum, our constitution speaks with principle and so do we.

Borg: Kay, I’m sure that's one of the quotes that you used in your reports.

Henderson: Indeed. Dean said some folks called it eloquent. Others, as I’m sure you're aware, called it arrogant. Do you think you struck the correct tone?

 

Cady: Well, I understand how there are differing views that may give rise to a speech like that. But as I said also in the speech is that I think it's time for all of us to get to know each other a little bit better. And I think if -- you know, I live in Fort Dodge. I come down to Des Moines when I have to work. Other than that, I work in the county courthouse with the other people in Fort Dodge. I get up early in the morning. I go to work. I’ll stop by and have coffee with the guys in the morning, and I do what other people do in their communities around Iowa. So I just happen to be the Chief Justice of the Supreme Court now, and that's just the job I’m doing.

Glover: I understand that you intend to meet with the folks from the Iowa Family Policy Center that's been renamed the Iowa Family Leader. What do you intend to achieve by meeting with the folks who have been so critical of the court?

Cady: Well, we'll meet with all Iowans. What we're trying to do is open up our court system, because I truly believe that that will be a way to give greater confidence in our court system.

Glover: And you say that you stop with the folks and have coffee on your way to work and hang around the Webster County courthouse in Fort Dodge. What do you hear from folks about this decision? What are they telling you?

Cady: Well, you know, quite honestly, Mike, my life hasn't been perfect the last two years. It’s a difficult issue in everyone's community. But I’ve been very, very pleased with the way my community has reacted. and I think because my community knows me, knows who I am, and knows that this decision was based upon the rule of law and what judges need to do and have to do and must do --

Glover: During your speech, you mentioned certain cases of the past in which the cases -- the court, rather, has set precedent. I’m thinking of the case in regards to a slave in Iowa and the precedent that set in Iowa's court system. Without the perspective of years, how do you think this Varnum decision will stack up compared to those cases?

Cady: You know, the issue in Varnum is, of course, consistent with civil rights issues that we have seen as we've marched through time. So in many respects this issue in Varnum is exactly what we saw surrounding brown versus board of education, and it's exactly what we saw earlier in our history. It’s the type of issues that relate to gender discrimination in our past. So this is a serious issue. It’s our civil rights issue of today, all Iowans' issue of today. And we happen to be here at the time in which it emerged.

Borg: You told Kay earlier that you have no absolutely -- you were very straightforward in saying -- emphatic in saying no regrets about that decision in Varnum. But I’m wondering, if a significant civil rights case came before you right you no, I’m wondering about the level of intimidation. If there is some there, would the court readily accept it?

Cady: Well, I’ll tell you, Dean, we have the -- we have one of the best judiciaries in the nation. We are known -- we're ranked number four in the nation in terms of our fairness and our impartiality, which are just hallmark principles of what society wants in judges. And there's not a judge in this state that's going to flinch, and that's why we need to stand up and explain to the public that don't understand that this isn't about our personal views, this is about applying the law, applying our constitution, and doing what judges have always been doing.

Glover: When I asked about permanent damage earlier, I guess that was the point I’m getting it. isn't there a danger that the judge out there that, when an obviously guilty criminal comes in and the lawyer raises the point about you shouldn't be able to use this evidence because of this or that, isn't there a danger that judge is going to look over his and her shoulder and say, I can't go there, look what happened to them?

Cady: That's exactly what the general fear is. Here in Iowa, you know, we're beginning to see some -- this is the type of rhetoric that we hear today is the type of rhetoric that can lead to that type of conclusion, that judges will start looking over their shoulders before they make a decision. We in Iowa are committed not to do that. We have a strong history in that commitment and a proud history in that commitment. And at the end of the day, all judges in this state can feel good about the work they do because that's our duty.

Henderson: What about the --

Borg: Go ahead, Kay.

Henderson: What about the advent of judges, if indeed they do mount campaigns for retention, accepting money from potential litigants?

Cady: Well, as I said, if that becomes a reality, that will change the complexion because that in itself would be something that Iowans would tend to not have confidence in our court system if they know that to be retained in office -- the idea that to be retained in office that you would have to go out and raise millions of dollars from people out there that may have interest in litigation in the future or pending litigation in the future, these are all very dangerous precedents that stand --

Glover: The reality, Justice Cady, is the critics of the court raised more than a million dollars, a lot of it from out of state, to oust those three justices. Aren’t we in some kind of a new political reality here?

Cady: You're right. This is a political reality. We saw it in November and we're continuing to see it today. My hope is that in the next two years by offering Iowans a greater openness, a greater transparency, that they will see, as I see now, that this is the court system that is the model for the country. This is the type of court system that Iowans want. By the time we get to 2012 with a new retention election of four justices again, that Iowans will be sending a message back to those four justices that we don't want the money to be put into a campaign from outside the state or inside the state or whatever, that we like our independent judicial system.

Glover: And most of your speech -- most of the attention -- I’m going to correct that. most of the attention to your speech went to the discussion that surrounds Varnum and those issues, but there are other issues that you raised in your speech that involve the court's budget. You suggested that the court is being underfunded and justice is being delayed, perhaps denied, in some cases. How much more do you need than you're getting now?

Cady: Well, all we are asking is to just maintain what we have now, because we have taken significant hits in our budget over the last decade. We are -- we have 17 percent less employees today than we had in 2001. And we are operating at the same level of employees that we had in 1987. So we have followed -- we have been responsible stewards of the money that the legislature has divided for us. We are not nearly at staffing levels that you see in other states around the country.

Borg: Do you fear that might be a way to also push the court?

Cady: Well, that certainly can be a way. But I have confidence that that's not the way Iowa wants to do it, nor is it the way that the legislature would want to do it.

Borg: Kay.

Henderson: As I recall, you were appointed to the bench by Governor Terry Branstad during his previous terms in office. What is your working relationship with Terry Branstad?

Cady: Well, this morning I had the privilege and the honor of administering the oath of office to him after he had done that on two occasions to me, once in 1994 when I was appointed to the court of appeals and then in 1997 when I was appointed to the Supreme Court. I met with Governor Branstad a few weeks ago. I expressed our budgetary concerns. He was very open and understanding. And I’m confident that I’m going to be able to continue to work with Governor Branstad.

Glover: Speaking of working, you have four members of the state Supreme Court. How is that working? Are you avoiding taking cases? Are you delaying controversial cases? How does this court work with only four members?

Cady: Well, this is all new territory for us, and losing three members has been a difficult thing, if you can -- as you can imagine. But we are doing everything we can to continue to perform our role that we've all taken an oath to follow. Yesterday we had oral arguments in our courtroom. You heard three oral arguments throughout the morning. Actually worked through the lunch hour and into the afternoon to discuss those cases. And then we had three or four non-oral cases in the afternoon that we also took up. So we are -- we are going forward with doing our work. It’s difficult.

Glover: There's been no case -- there's been no case where you've kind of looked at it and said, ahh, let's not take that one quite yet?

Cady: No. We have a duty and we have a responsibility and we're going to do it under whatever circumstances we have.

Borg: Kay -- I’m going to get back to the money -- just a second, Kay -- before we leave that subject. Is there a point where you would feel that the court was in such dire financial trouble that you would actually order the legislature as a separate and equal branch of state government to adequately appropriate money for the court?

Cady: Well, that would be an extraordinary remedy, and we are not even close to that. Last year the legislature understand our message, and they responded with giving us the funds that we needed. And I’m confident that -- you know, our budget is less than 4 percent of the entire state budget. We don't -- it doesn't take much to operate a court system. All we are is people. That’s almost -- our entire budget is just people. And I’m confident that the legislature will continue to, despite the economic times that we have, will continue to recognize what we need to maintain an acceptable level of justice.

Borg: Kay?

Henderson: In the federal system, the president chooses the Chief Justice of the U.S. Supreme Court. In Iowa that does not follow to the governor. The justices among themselves choose who will be their chief. By selecting the person who wrote the opinion, Varnum, what message were the justices, your colleagues, sending?

Cady: Well, we weren't sending any messages by who authored a particular decision at any point in time. We needed to find a replacement for Chief Justice Ternus and my colleagues turned to me and I’ve accepted that and we will reconsider it once we get to be a full constitutional court.

Glover: So you'll take another look at it when you have all seven justices.

Cady: Yes, absolutely.

Glover: There are -- in addition to the question of whether you should impeach judges and the voters throwing those three out, there are a lot of suggestions that maybe the way that Iowa picks its judges ought to be revisited. What’s your view of that?

Cady: Well, that would -- that would be going down the wrong path. We have -- Mike, we have the best system available. No system is going to be perfect, but we have the best system available to select our judges. And the process has worked despite the fact that there's times when people are not quite sure whether there's enough members of one party on the commission or not. But what has been the key is that good people have been put on that commission. That commission works extremely hard, and I’m sure all state commissions, but this one in particular, especially now. The commission members -- there's 15 commission members. And I’ve had the privilege of serving as the chair of that commission the last couple years. I would estimate that each one of them in this coming process is devoting between 100 or 150 hours to decide who are going to be the nine justices nominated to the Supreme Court. That’s a commitment. And people do that because they are committed to the system that we have.

Henderson: So how would you describe the mood among the folks who work at the court?

Cady: Well, there was a great deal of sadness, Kay, after the retention -- and it -- you know, to see empty offices even now is a stark, sad reminder that we've lost three colleagues that were extremely devoted, dedicated people that served this state proudly. Let me just tell you -- you know, that vote on November 2 was a real blow.  But those three justices came into work the next day and the next day, and they continued to work -- continued to work on their opinions, continued to be involved in the total operation of the court until the end of the year.

Borg: Justice Cady, I don't have a gavel but we're out of time. Thanks so much for being with us.

Cady: It's been a pleasure.

Borg: We'll be back at our usual Iowa Press times next week. Those times are 7:30 Friday night and 11:30 Sunday morning. I’m Dean Borg.  Thanks for joining us today.


Tags: constitution controversy gays and lesbians Iowa Iowa chief justices Iowa Supreme Court Mark Cady marriage politics same-sex marriage