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Judicial Retention

posted on September 28, 2012

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Passing judgment.  Iowa voters again judging judges. The question centers on Iowa Supreme Court Justice David Wiggins.  Should he be retained on the court or not.  We'll hear the arguments on this edition of Iowa Press.

Borg: During this past week two campaign buses have been traveling in Iowa.  In one bus, Family Leader organization head Bob Vander Plaats and campaigners along with him making a case for voting not to retain one of the four Iowa Supreme Court justices who must have voter approval in this election to continue serving on the high court.  The campaign is targeting one of those four, Justice David Wiggins, to be removed from the court. And that is because he was part of the unanimous 7-0 Iowa Supreme Court decision declaring the state's law prohibiting same-sex marriage as unconstitutional.  Voters two years ago decided against retaining three of Justice Wiggins' colleagues in that decision including the previous chief justice.  But another bus, sponsored by the Iowa Bar Association, was following Bob Vander Plaats around the state this week advocating for retaining Justice Wiggins and one of those advocates is with us today, Iowa Bar Association President Cynthia Moser.  And sitting beside her, Bob Vander Plaats.  Welcome to Iowa Press.

Vander Plaats: It's good to be here.

Moser: Thank you. 

Borg: We don't want to talk about the bus tour but we want to talk about what you were saying on that bus tour.  And asking the questions today, Cedar Rapids Gazette Political Writer James Lynch and Radio Iowa News Director Kay Henderson.

Henderson: Mr. Vander Plaats, this past week during one of the news events that you held around the state you said it would be harder this time around to encourage Iowans to remove Justice Wiggins.  Why did you say that?

Vander Plaats: Well, Kay, it's kind of the coach in me.  When you win a state championship as we did two years ago when we held justices accountable, Baker, Straight and Ternus, and we had a record turnout and over half a million Iowans voted to hold them accountable.  But now you have to gear up your base again and say okay, we won that state championship, the other four didn't resign as we asked them to do to protect the integrity of the court.  They stayed on and now Wiggins is up for retention.  Now we have to remind them and reengage them and any time you get the team back into the locker room and say now we have to do it again that will always be a more difficult battle.  But I believe after this week I think it's a very doable battle.

Henderson: Ms. Moser, the Iowa State Bar Association was not involved in the 2010 campaign on this issue to the degree that you are this year.  Why?

Moser: In 2010 we had a different situation.  Obviously prior to 2010 we had nearly 50 years where our judges and justices had stood for retention.  Every six or eight years depending on what level of the judiciary they sit at we had never had a judge or justice removed from the bench.  So it was an entirely new situation.  The bar association did strongly advocate for the retention of the three justices who were on the ballot in 2010.  However, the timing of our judicial retention survey, which at that time we refer to as the judicial plebiscite, was later in the year, it came out toward the end of September.  So we were not in a position to start our advocacy efforts until October.  We certainly recognized that if we were going to educate Iowa citizens about the quality of our judiciary and to make recommendations on the retention of those judges and justices on the ballot it was important to move that date forward.

Lynch: Bob, you talked about thinking of this as a coach would.  It appears the playing field has changed since two years ago.  A poll done for Justice Not Politics supports retaining Justice Wiggins found 48% support retention.  It also found that among both democrats and republicans there has been movement towards supporting the Varnum decision.  And more telling among independents in support for that decision has grown from 27% in 2009 to 51% now.  Does that make it harder?  Are attitudes changed beyond the point of making your case and winning this campaign?

Vander Plaats: I think freedom is always a strong issue and referencing a bias poll -- if I was the other judges, there are three others besides Wiggins, and know that I'm at 48% I'd be concerned.  Believe me, we are not advocating for their dismissal.  They scored in the mid 90s of the bar association's review through their reporting mechanism.  But we do believe once we educate Iowans on Wiggins, what he has done, not only the poor scoring that he had according to their scoring instrument -- the educator in me says that is a D- and we have told that to people all across this state but then reminding them that he legislated from the bench, he executed from the bench, he tried to amend the Constitution from the bench and if he'll do this to the institution of marriage it's a private property issue, it's a 2nd Amendment issue, it's a religious liberty issue, it's a freedom issue and we won last time, James, not just with republicans but with the independents and democrats alike. And on this bus tour I had several people come up to me and say I disagree with you on the stance on marriage but I'm still going to vote no on Wiggins because I don't believe they can do what they did for us to get to same-sex marriage.

Moser: May I respond to that?

Lynch: Yes, please.

Moser: It's hard to know where to start because there are so many misrepresentations and mischaracterizations of what has happened and what our court did.  First of all, let me speak to the bar association's judicial retention survey, which is released to the public to educate the public about the things that we think are important for them to know as they make an informed and intelligent decision whether to vote to retain judges.  There are, again, depending on the level at which a judge sits eight or ten questions.  They go to judicial temperament, integrity, the quality of the decisions and the work product that the judge produces and his or her commitment to public service.  In this instance, in every category that Justice Wiggins was rated he was rated in a high satisfactory range.  WE believe that is a strong basis to support retention for him. Mr. Vander Plaats has referred to this D- grade.  It is important for you to understand that this isn't a classroom exercise.  The question whether a judge or justice should be retained is more in the nature of a poll.  A 63% vote is a strong vote in support of retention.  It is certainly much higher than the 51% that would be necessary under Iowa's retention election requirements to retain that person.  It is not a letter grade that is assigned in a classroom setting.  And in this instance it is more in the nature of a poll or a referendum.  Any politician I think would be delighted with a 63% --

Vander Plaats: Maybe a politician would be delighted but let me remind voters, let's be accurate because I've been accused of having mischaracterizations here -- the three justices we voted out last time, Marcia Ternus was at a 72 and Baker and Straight were in the 80s.  The three that we replaced them with are now all in the 90s.  Wiggins is at a 63% and I have been trained to read scoring instruments and this is yours.  It's like me taking a poll on my family.  100% of my family voted for me when I ran for governor.  This is like 63%. I've got Bar Association attorneys saying they have never seen a judge rated this low --

Borg: I'm going to let Ms. Moser respond to that because she wanted to and then we'll go on.

Moser: Again, let me stress that this is not a classroom exercise, this is a poll or a referendum and there was a strong majority supporting the retention of Justice Wiggins on the bench. So I think it is a mischaracterization and it is inaccurate to state --

Vander Plaats: Then you need to get it out to the rest of your bars -- out to the rest of your bar association people because they have been calling and saying what a low grade, what a low score and as a matter of fact they're quite insulted that the bar association is traveling the state saying to retain somebody with this low of a score.

Moser: The fact of the matter is a strong majority of our members support what we're doing. Our board of governors voted unanimously to support the action plan. They are the elected representatives of our members. Certainly we have some members who take issue with our position just as you have members of your republican party who take issue with your position.  That is to be expected in the democratic society.  The fact remains, however, that Justice Wiggins, when you look at the judicial retention survey, scored in the high satisfactory range in every question that was asked and deserves to be retained.  And let me add, the rating wouldn't make a difference to you.  IT didn't make a difference to you in 2010 when Justice Straight, Ternus and Baker were on and they rated in the 70s and the 80s.

Borg: I want to move on, Mr. Vander Plaats.  Let’s stay with your metaphor in saying that you want to remind and reengage the base.  The poll may indicate, that James cited, changing attitudes but there's one big attitude that changed, that’s President Obama's.  HE said a few months ago that he has reconsidered and has evolved in his decision-making and now he supports same-sex marriage.  He is a candidate at the top of this ballot this time.  How is that affecting your campaign?

Vander Plaats: Well, first of all, let me go back to a couple of things.  First of all, what Cynthia said, is you're right.  It won't change even if they're in the 90th percentile. If a judge goes outside their constitutional parameters to make law from the bench and to execute law from the bench and even to try to amend our constitution which they did in the Varnum opinion -- let me finish, Dean -- in the Varnum opinion we're going to hold them accountable.  What you're asking with President Obama, that he has evolved on same-sex marriage, I think most people see that as a political reality that he felt he needed to evolve there.  However, the removal of Justice Wiggins, although marriage was the issue that they ruled on freedom is the bigger issue at stake because our founders said, as a matter of fact Jefferson said we have the threat of being an oligarchy if we have a court with that much power.  That would be tyranny, not liberty.  That is what we fled.  That is why every freedom-loving conservative will vote on this ballot and I believe they'll vote no on Justice Wiggins.

Borg: Ms. Moser, I'm going to get back to the President Obama evolving in his decision making and now affecting perhaps this election.  How is that influencing this current campaign?

Moser: Well, I think it certainly is a demonstration of the fact that society in general, as the polling indicated, moved more toward an acceptance of same-sex marriage as an acceptable way of life for people. I'd like to go back and talk about the allegation that our justices on the Supreme Court have legislated from the bench, have amended the Constitution because nothing is further from the truth.  Our judges and justices taken an oath when they are sworn in to uphold and defend the Constitution of the state of Iowa and that is precisely what they did here.  They did not legislate from the bench.  They applied the equal protection clause of the Iowa Constitution and found as it requires that in order to treat all Iowa citizens equally under the law it was necessary to permit same-sex --

Borg: And that is the very basis of your campaign.  Kay is going to ask you a question but I’m going to let Bob Vander Plaats --

Vander Plaats: The Varnum opinion, again, this is from people who are way brighter than me on constitutional law and attorneys who have read this, said it must be one of the worst opinions they have ever read.  When they cite the equal protection clause, this case was settled when Baker vs. Nelson in Minnesota went all the way to the U.S. Supreme Court.  The U.S. Supreme Court ruled that the U.S. -- that the equal protection provision did not require states to have same-sex marriages.

Borg: I'm going to interrupt now and let Kay ask a question.  Kay?

Henderson: Governor Branstad heretofore has said he'll let the people of Iowa decide how to vote and he won't disclose what his thoughts are on this matter.  Mr. Vander Plaats, what are your thoughts on Governor Branstad's silence on this issue?

Vander Plaats: Well, that is -- I guess that's his decision.  Cynthia said that my republican party -- the Family Leader is not republican.  We're for pro -- anything that advances family issues we're for, anything that takes away from family issues we're against.  That is Governor Branstad's decision.  I think people would like to see leadership on that issue from him.  Obviously we just had one of his peers, Governor Bobby Jindal out here who a lot of people respect, a very bright man, talking about judicial activism.  Senator Santorum, an attorney who has already read this opinion, very concerned about judicial activism.

Henderson: Ms. Moser, you had Christine Branstad, who happens to be Terry Branstad's niece, speak at a rally in support of Justice Wiggins.  Why did you do that?

Moser: Christine is a member of our fair and impartial courts committee which has been working since mid-2011 on developing the bar association's position with respect to retention of all of our judges and justices.  As a member of that committee she has been very actively involved and she volunteered to be -

Henderson: So you weren't trying to telegraph something about Terry Branstad?

Moser: No, it's frankly a coincidence but one that we were happy to have occur.  She is a very, very effective speaker and feels passionately about this issue.  And I do want to make clear that the position of the bar association is not limited to the retention of Justice Wiggins.  We have advocated for the retention of all of the judges and justices on the ballot.

Borg: Jim Lynch?

Lynch: Yeah, Bob, I was going to ask you -- you've had your differences with Governor Branstad.  You ran against him.  How do you feel about giving him the opportunity, if you're successful and if he runs for re-election, that he could appoint all seven justices to the Supreme Court by the end of -- as this runs its course?  People he appointed in the past were part of that Varnum decision, including the justice that wrote that unanimous opinion.  Do you have any concerns about that?

Vander Plaats: I don't have that many concerns about it.  What we'd like to see -- when we voted the other three off we would like to see a whole new process of how you appoint judges to the bench.  The bar association has got a heavy influence on who becomes our high court justices and that is why they have so much at stake here, that is why they are so passionate about protecting that institution versus defending the Constitution. Now, again, the justices that did come up this past time, they are scoring very high.  We didn't see them go outside their constitutional parameters.  But we would like to see a system where the Governor gets to appoint, the Senate gets to confirm and the people of Iowa still have a voice of retention.  The whole issue comes down here -- will the people of Iowa have a voice?  We have denied them the voice on the same-sex marriage issue.  Gronstal is denying them a voice. That's why I think Wiggins is going to lose his job and I think Gronstal is going to lose his job.

Henderson: Gronstal would be the Senate Majority Leader Mike Gronstal, correct?

Vander Plaats: He would be the Senate Majority Leader now.

Henderson: For people who aren't following this closely.

Vander Plaats: Now he would be but in the future probably not.

Lynch: Ms. Moser, does the bar association have a concern about one governor appointing all seven justices?  And do you have a response to Bob's comment about direct election or changing the method of electing judges?

Moser: I certainly do because I think it points out that there is a much broader agenda at play here.  It is not just the removal of a justice that they believe acted improperly.  There is a much bigger agenda here which is a wholesale change to a system of selecting judges, our merit selection process which has served this state so well for 50 years.  I do want to speak just for a moment if I could to the selection process and Bob's allegation that it is dominated by the bar association.  Nothing could be further from the truth.  The bar association does not play any role in the selection of the individuals who serve on the judicial nominating commission.  It is a commission that is made up half of lawyers who are elected by the members of their respective judicial districts.  You do not have to be a member of the Iowa State Bar Association to be elected.

Borg: Let me interrupt just to have you respond to this question -- should Justice Wiggins be taking more of an active part in his own retention?  I'll just say that he was invited to be on this program as a solo guest today and he declined.  Is that the correct low profile that he should be taking in what you say is such a strategic decision?

Moser: Obviously that is his decision to make.  I certainly support that decision.  I think it must have been a very difficult one for him.  The code of judicial ethics does allow judges to form campaign committees, to raise money and to campaign in a retention election.  Our judges and justices have wisely, I believe, chosen not to get involved in the sort of partisan exercise that is taking place here.  I think it is a courageous decision on his part.

Lynch: Michael Straight, who was one of the justices removed two years ago said this week that it is naive to think that the justices can stay above the fray, that they need to have an all out campaign to stay on the bench.  It sounds like you disagree with that, that you prefer the low profile and that you prefer that Justice Wiggins not be front and center in the campaign.

Moser: Again, I think it is obviously a decision that each individual judge or justice needs to make for him or herself.  Speaking for myself I applaud that decision.  I think it is a courageous decision because it underscores the judge's commitment to remain impartial, fair and objective.

Borg: I know you want to respond to that but quickly.

Vander Plaats: Well, the campaign strategy is -- everybody saw Wiggins come out in the Des Moines Register saying that he was going to actively defend his position on the court.  He has said that in the Des Moines Register in a Sunday article.  Then it comes out and he says I'm going to plead the 5th.  Right after he pleads the 5th the Iowa Bar Association is going on a tour.  All of this stuff is courted me and they say we've had 50 years of good -- you know what it is, the courts have same-sex marriage going on in the state of Iowa.  The law has never changed.  595.2 is still on the books as Dwayne Alons reminded us in Orange City yesterday of one man, one woman marriage.  So they said Iowa will be a same-sex marriage state, they said all 99 counties will follow suit, they said they're going to garner rights or hand out rights that the founders could never imagine.  That is an activist court and when that happens it should be upon the bar association as well as all Iowans to hold them accountable and if Wiggins isn't talking for himself I believe he is defenseless.

Henderson: So are you colluding with Wiggins?

Moser: Absolutely not.  To say that we have coordinated some sort of effort is made up out of whole cloth, nothing could be further from the truth.  We are making decisions as a bar association guided by our board of governors and input from our members as to what the position of the bar association should be.  We do not confer with any of the members of the Supreme Court or any other judge in this state.

Henderson: Mr. Vander Plaats, on the bus that you are riding around in throughout the state this week there is a quote from Justice Wiggins.  Could you repeat it for us?

Vander Plaats: The quote is basically in your own words tell me how we can get around the Iowa Constitution.

Henderson: You're taking some heat for that because that is a quote from an interview that a group of people were doing of prospective justices, it was not related to the Varnum decision.

Vander Plaats: It was not related to the Varnum opinion but here you have a Supreme Court judge, we have him on tape, you saw it on tape, we have him on tape saying those words.  Why would he ever say those words?  And that person they ended up nominating to be one of the people for consideration to the Supreme Court.  I think that is a big telling point to the people that if you have that low of regard of the Iowa Constitution to say, tell me in your own words how do we get around the Iowa Constitution on this -- the Varnum opinion, as a matter of fact, there’s an opinion in Hawaii, the U.S. district court in Hawaii just ruled on a DOMA Act.  They referenced the Varnum opinion, August 8, 2012.  They said to strike the Defense of Marriage Act and to begin issuing same-sex marriage licenses would be akin to judicial legislation or legislating from the bench --

Borg: I'm going to --

Vander Plaats: Hold on -- they said it would be difficult for the judges to keep their personal bias out of it and this is a matter -- they said in the opinion -- that the people of Iowa need to decide.

Henderson: Ms. Moser, what about that court?  Was it improper of a judge to say that?

Moser: I think it was a provocative question.  I suspect if you ask Justice Wiggins he would say he wished he wouldn't have asked the question in quite that way.  It's clear though if you listen to the transcript and it is readily available online, I would encourage people to listen to the entire exchange, it is not what is being suggested here.  It does not display a disregard for the constitution.  If I could speak for just a moment to the Hawaii opinion that Mr. Vander Plaats referred to.  Again, he is mischaracterizing it.  There is a fascinating and lengthy history to what has happened in the state of Hawaii.  In 1993 the Hawaii Supreme Court ruled that same-sex marriage in Hawaii was constitutional, excuse me, denying marriage to individuals of the same sex was unconstitutional based on their equal protection clause very much like what we did here.  It was then the subject of legislative and citizen vote, same remedy that people in Iowa have, if they disagree with the decision of the Iowa Supreme Court their remedy is not to vote justices off the court.  That does nothing to change the opinion --

Vander Plaats: So why would I be marrying same-sex couples today because it's the same argument Mark McCormick issues --

Borg: We're running out of time.

Lynch: Briefly, we're caught up in the heat of a campaign but when you step back and look at this, what is the greater threat to the judiciary, this anti-retention effort or the lack of funding that the court has asked for from the state legislature?

Moser: It's hard to put those on balance and say which one is a greater danger.  Certainly they are both significant threats to the functioning of the judiciary at the level at which we would like it to function.  For me the retention effort, the effort to remove justices for doing their constitutionally sworn job is the bigger issue, it is the injection of politics, personal and special interests agenda into our court system and that simply should not be allowed to happen.

Henderson: Mr. Vander Plaats?

Vander Plaats: That is a total mischaracterization.  What is the biggest threat is to the constitution because if we embrace judges who want to make law from the bench or execute law from the bench or render constitution from the bench God help this country because not only is marriage up for grabs, everything else you hold dear, your freedom, your religious liberty, your private property, how you educate your kids, that is up for grabs.  They're holding on, even their own members have called us, they're holding on for power and control.  They want to defend an institution, we want to defend the constitution.

Henderson: What happens if you fail?

Vander Plaats: We still did the right thing.  You’ve heard me say before about my boys, you'll never be right when you do what is wrong, but you'll never be wrong when you do what is right.  This is an effort worth fighting.

Henderson: Ms. Moser, what happens if you fail?

Moser: I think it is a very frightening time for the state of Iowa.  It means increasingly that our judges are going to have to look over their shoulder to see what special interest group, what politician, who is going to be attacking them for doing their job.

Henderson: We only have about 30sceonds left, looking ahead, forward rather than over my shoulder, will you run for a fourth time for governor, Mr. Vander Plaats?

Vander Plaats: Right now our only focus is on growing and developing the Family Leader and anything that advances the family we're going to be for, if it takes away the family like this effort we're going to be against and we're going to hold people accountable.

Borg: Thanks to both of you for taking time to be with us today.  As Election Day nears, Iowa Press is going to be taking Iowa Press on the road in the coming weeks.  We're highlighting congressional races in all four districts of Iowa with live debates.  Now here's a preview.

In four consecutive weeks in October, IPTV will hold Iowa Press Debates across the state in each of Iowa's congressional districts.  On Thursday, October 11th, the 3rd district race between democrat Leonard Boswell and republican Tom Latham will air live at 7pm in Council Bluffs from the Iowa Western Community College Arts Center.  On Tuesday, October 16th, the 2nd district race between democrat Dave Loebsack and republican John Archer will air live at 7pm from the DMACC campus in Newton.  On Thursday, October 25th, the 4th district race between democrat Christie Vilsack and republican Steve King will air live at 7pm from the Santa Maria Winery in Carroll.  On Thursday, November 1st, the 1st district race between democrat Bruce Braley and republican Ben Lange will air live at 7pm from the Grand Opera House in Dubuque.  All Iowans are welcome to attend these debates with seating based on a first-come, first-served basis.  Or you can watch the live debates on statewide Iowa Public Television and online at iptv.org.  Four congressional debates in four weeks, all broadcast live on IPTV.  We hope you'll join us for each expanded edition of Iowa Press.

Borg: And we'll be back with another edition of Iowa Press right here next weekend, a Reporters' Roundtable to discuss the 2012 election and preview what Iowans may be seeing on these Iowa Press Debates in October.  Same times next week, 7:30 Friday night, a second chance to see Iowa Press at noon on Sunday.  Thanks for joining us today.


Tags: Bob Vander Plaats campaign 2012 Cynthia Moser elections Iowa Iowa State Bar Association judicial retention politics The Family Leader