In Iowa, voters’ anger sweeps out

judges, too

By A.G. Sulzberger / New York Times News Service

Published: November 04. 2010 4:00AM PST DES MOINES, Iowa — An unprecedented vote to remove three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage in the state was celebrated by conservatives as a popular rebuke of judicial overreach, even as it alarmed proponents of an independent judiciary.

The outcome of the election was heralded both as a statewide repudiation of same-sex marriage and as a national demonstration that conservatives who have long complained about “legislators in robes” are able to effectively target and remove judges who issue unpopular decisions. Leaders of the recall campaign said the results should be a warning to judges elsewhere.

“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”

But critics of the campaign, including those who see the courts as a protector of minority rights and unpopular views, said the politicization of uncontested judicial elections represented a danger.

“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,” said Erwin Chemerinsky, the dean of the University of California, Irvine School of Law. “Something like this really does chill other judges.”

Replacements for the three ousted justices will be appointed by the governor from a slate of candidates nominated by a committee of lawyers and will have to stand for periodic retention votes, known as merit selection.

From its first decision in 1839, the Iowa Supreme Court demonstrated a willingness to push ahead of public opinion on matters of minority rights, ruling against slavery, school segregation and discrimination decades before the national mood shifted toward racial equality.

That legacy was cited in liberal corners here last year when the seven-member court voted unanimously to strike down a law defining marriage as between a man and a woman, making the state the first in the Midwest to permit same-sex marriage.

But the risk of leapfrogging — or ignoring — public opinion on controversial issues was brought into sharp relief Tuesday when voters chose to remove all three justices who were on the ballot seeking new terms.

Conservative groups this year launched similar campaigns in a number of the 16 states that use merit selection, targeting supreme court justices for rulings on abortion, taxes, tort reform and health care. Unlike the three in Iowa, however, those judges — in Alaska, Colorado, Kansas, Illinois and Florida — were all re-elected