If he’d been expected back in 1985 to go out with “hat in hand” and raise money to run for the bench, Judge Van Zimmer isn’t sure he would have done it.
“Having to go out and raise money from lawyers and litigates who appear before judges is very unseemly,” said the Iowa Appeals Court senior judge. “We have a good system worth defending.”
Iowa selects judges by merit instead of by election. Applicants for justice or judge are selected by a nominating commission. Selected judges are up for a retention vote every two years.
Rachel Caulfield, associate law professor at Drake University, said the system has worked well since 1962. Just look at how many judges were removed in retention elections in 48 years — only four, she said.
The system has kept the judiciary insulated from “big money” and politics, Caulfield said.
Zimmer and Caulfield are just two among many in the state defending Iowa’s merit selection system because of Bob Vander Plaats’ “Iowa for Freedom” campaign.
The former gubernatorial candidate wants to unseat three “activist” Iowa Supreme Court justices, because they legalized same-sex marriage last year by declaring the state’s Defense of Marriage Act unconstitutional.
Vander Plaats said his sole focus is to get Chief Justice Marsha Ternus and Justices David Baker and Michael Streit off the bench. They are all up for a retention vote in November, and he wants to make voters aware they have the power to say no.
Vander Plaats said it’s not his intention to change the way judges are selected.
“I’m not a proponent of electing judges,” he said.
Norbert Kaut, spokesman for Iowans for Fair and Impartial Courts, said it’s disingenuous for Vander Plaats or anyone to say they didn’t know this would affect the merit selection system.
“If judges are threatened in retention elections, they may be forced into forming a campaign effort to stay on the bench,” Kaut said. “They will be put in the position of having to go out and get money.”
Kaut said the non-partisan advocacy group beefed up its efforts to educate voters when Vander Plaats started his campaign. Iowans for Fair and Impartial Courts actually started forming last year, though, because of what was happening in other states.
A recent report by the Brennan Center for Justice documents how state judicial elections have evolved and how much money is spent on judges’ campaigns. The study found campaign fundraising more than doubled, from $83.3 million in 1990-99 to $206.9 million in 2000-09.
There are about 39 states who elect some or all judges. It gets confusing, because some states use a combination of election and merit, depending on the court, such as supreme or district level.
Kaut said because of special-interest money contributed to Vander Plaats’ campaign, his group will be outnumbered. Iowans for Fair and Impartial Courts relies on volunteers.
“They’re running a TV ad that’s $60,000,” Kaut said. “This is from (the American Family Association) that doesn’t have any interest in Iowa courts. They only care about one issue (same-sex marriage).”
Vander Plaats bases his claim that the justices “overstepped their bounds” on Article 12.1 of the Iowa Constitution:
This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void. The general assembly shall pass all laws necessary to carry this constitution into effect.
Vander Plaats said the court can void any legislation determined to be unconstitutional, but then it should go back to the Legislature.
Mark McCormick, an Iowa Supreme Court justice from 1972-86, said Vander Plaats is wrong in his interpretation. The issue didn’t have to go back to the Legislature. The statute was found invalid, so there’s nothing to correct, “nothing to send back,” he said.
“It’s just retribution for the justices who made this decision,” said McCormick, a Des Moines attorney. “Now, the justices could form a campaign committee to fight this, but I don’t think they will do that.”
Caulfield pointed out two more misperceptions looming over this debate.
“One is that getting rid of the three justices will change policy, because it won’t, and the other is this is only about Supreme Court justices. Vote ‘no’ on one ballot could mean a vote ‘no’ on all judges,” she said.
Caulfield said people might overreact and vote out judges who had nothing to do with the same-sex marriage ruling.
She said it doesn’t matter what Vander Plaats intentions are, because his campaign has kicked off a broader conversation on the way judges are selected in Iowa.
Caulfield said another danger is how the retention vote is used. The retention election is designed to remove judges who are unfit. “It’s not the purpose of retention to vote out judges because you don’t like this one decision they made,” she said.
Zimmer, who has thoroughly researched the Iowa merit selection process, said the system was changed from electing judges, because people felt the judges were too partisan. The concern was they were influenced by political pressure and couldn’t rule in a fair and impartial way.
“It was a broad-based effort on both sides to change the system,” Zimmer said. “The merit system passed in 70 of 99 counties in 1962.”
The four judges ousted in retention elections since then are: District Associate Judge David Halbach from Clinton in 1976; District Associate Judge Anthony Scolaro from Cedar Rapids and District Associate Judge Roger Halleck from Marshalltown, both in 1978; and District Judge Rodney Ryan from Des Moines in 1994.
Zimmer said all the judges were removed because of character or behavioral issues.
“If voters get a chance to understand the system, I think it will make sense to them,” Zimmer said. “Any time a judge is asked to make a tough decision, it makes folks unhappy. Our job is to support and defend laws and the constitution of the state. Judges don’t get to pick their cases.”
— Trish Mehaffey is a reporter for the Cedar Rapids Gazette.