It was late on Election Day 2010 and Vander Plaats, a Sioux City, Iowa, businessman and leader of a campaign to oust three Iowa Supreme Court justices, had just gotten word that he and his team had pulled it off. The voters had rejected the three justices up for a retention vote: David Baker, Michael Streit and Chief Justice Marsha Ternus.
A few months earlier, the Iowa Supreme Court had voted unanimously to overturn a ban on gay marriage, arousing the ire of many conservatives in the state. Iowa has a merit selection system for appointing high court justices, which means an independent commission recommends candidates for a seat on the bench. They are appointed by the governor, but to stay on the bench they must appear before the voters near the end of their terms. For Supreme Court justices, the length of each term is eight years.
For three of the Iowa Supreme Court’s seven judges, their periodic appointment with the voters came last November. Hundreds of thousands of dollars from conservative groups targeting these justices poured in from around the state and around the country. It was the first time in nearly half a century that Iowa voters had rejected a sitting high court justice.
“This night did not have to happen,” Vander Plaats told the cheering crowd. “If our Supreme Court would have stayed in their constitutional boundaries, this night didn’t have to happen. But when they went outside of their constitutional boundaries and made laws from the bench and executed from the bench and amended our constitution from the bench, all our freedoms were up for grabs. … We did not insert politics into the process. They inserted politics into the process when they decided they could make law from the bench.”
Elected officials know they are vulnerable to the whims of irate voters. But in many states, high court judges are elected officials, too. While governors may make the initial appointments in some states, those judges more often than not still have to come before the voters in order to retain their seats on the bench.
The result is that, in many jurisdictions, judges, whose professional obligation is to adhere to the law, must also weigh the political consequences of their decisions. In some instances, a legally correct but unpopular opinion can spell the end of a judge’s career. So when Iowa voters kicked the three justices out of office, it sent some shudders through the legal community and rekindled a long-simmering debate about the best system for picking and retaining judges. It also had many asking what truth and justice actually mean for society’s most vulnerable members.
“What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” Erwin Chemerinsky, dean of the University of California, Irvine School of Law and a vaunted constitutional scholar, told The New York Times, shortly after the election. “Something like this really does chill other judges.”
