Patterico's Pontifications

11/3/2010

Iowa Voters To Gay Marriage Justices: “You’re Fired!”

Filed under: General — Aaron Worthing @ 4:18 pm



[Guest post by Aaron Worthing; send your tips here.]

One nice result last night is that voters in Iowa chose to throw  out of office three of the judges who were involved in the recent decision granting a right to gay marriage in that state:

Voters in Iowa chose to remove three high court justices who helped make Iowa the first Midwestern state to permit same-sex marriage.

The vote marks the first time a member of the Iowa Supreme Court has been rejected by the voters under the current system that began in 1962.

Under the voting system in Iowa, each of the three justices up for retention — Chief Justice Marsha Ternus, David Baker and Michael Streit — needed simply to get more “yes” votes than “no” votes in the election to be elected for another eight-year term. They faced no opponents. None of the judges raised money for the campaign.

While all seven justices on the court ruled with Ternus, Baker and Streit, those three were the only ones whose seats were up for retention. None of them received the 50 percent “yes” vote needed to remain on the bench.

(Source.)  Iowa courts operate on the so-called Missouri plan where a committee nominates judges that are picked by the governor and then, after serving a year, start to face retention elections.  This is touted by the judiciary itself as being superior to straight elections because

by eliminating the need for judicial candidates to finance political campaigns—which usually involve accepting substantial sums of money from well-heeled special interest groups seeking favorable court decisions—merit selection promotes an independent and impartial judiciary

So you see these people will rule on the law, rather than making things up in the constitution, right?  For instance, here is a shining example of the judges not at all making things up in the gay marriage case itself:

The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.

Shorter Iowa Supreme Court: “we’re smarter than you Iowans and the people who wrote the constitution, so we are going to do our own thing!”  It’s good to see politics removed from the issue.

Of course it was a unanimous decision, among seven justices, so that leaves four more who voted in favor of this law, and there is no guarantee that the three replacements would rule the other way.  In other words, this is a piss-poor way of reversing that decision.  But still one can appreciate the message that this sent to the judges.

Of course as far as the message received, we get this official statement from the three justices who lost:

[W]e hope Iowans will continue to support Iowa’s merit selection system for appointing judges.  This system helps ensure that judges base their decisions on the law and the Constitution and nothing else.  Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.

In short, you stupid plebes are going to ruin our activism at this rate.  Imagine that.

Finally, as the issue moves through the federal courts, I think this might bear on Kennedy’s thinking on Proposition 8.  I wrote several months ago that

[t]he fact is strong majorities of Americans oppose gay marriage.  Even larger majorities opposed judicially imposed gay marriage.  Just as few states executed child rapists bore on (Justice) Kennedy’s analysis in Kennedy v. Louisiana, the fact that few states recognized full gay marriage will bear on his mind here.  And consider how dramatically the unpopularity of gay marriage has been demonstrated in this particular case.  When the California Supreme Court first held that the California constitution demanded that there be gay marriage, it was assumed that this was the law from then on.  But then the people rose up and struck down gay marriage—and in the midst of a Democratic “wave” election, no less.  Let me emphasize this: even in California the people didn’t want gay marriage.

A victory for gay marriage before the Supreme Court would therefore be seen as illegitimate by vast majorities of the American people.  Kennedy would rightly fear a popular uprising just like the one seen in California in passing Proposition 8 iteself.  Indeed, he might even fear bullying similar to that seen in the New Deal era.

For that reason, for the sheer disdain he would bring down on the Supreme Court, I do not believe he will vote to overturn Proposition 8.  A more likely possibility is that Kennedy will require states to create civil unions or domestic partnerships.  Because after all, the majority of Americans also favor doing that.  I could even imagine him gradually chipping away at it until those civil unions or domestic partnerships are marriages in all but name, by requiring them to have identical rights and obligations.

This rebuke to the Iowa Supreme Court’s activism would also bear on his mind.  I do not believe that he will be the fifth vote to create a right to gay marriage.

[Posted and authored by Aaron Worthing.]

113 Responses to “Iowa Voters To Gay Marriage Justices: “You’re Fired!””

  1. When national special interest groups flood huge sums of money into a tiny state for the express purpose of defeating judges so that judges elsewhere will be intimidated… it’s sorta not very America I think.

    happyfeet (a55ba0)

  2. it’s an if the shoe were on the other foot thing I think

    happyfeet (a55ba0)

  3. Legislating from the bench is not very America I sorta think.

    daleyrocks (940075)

  4. your offended sensibilities would carry more gravitas if they weren’t so selective in what they are sensitive to, feet.

    redc1c4 (fb8750)

  5. hah.

    I don’t do gravitas Mr. red, and I agree Mr. daley, legislating from the bench is not very America. But I don’t like these tactics what they used and honestly I think it’s disappointing how I was assured the midterms were about the spendings spendings spendings and I wake up this morning to find out it was an awesome validation of the Sacred Definition praise Jesus hallelujah.

    Made me downright grumpy it did.

    happyfeet (a55ba0)

  6. Were huge sums of money flooding into Iowa for those retention questions? Is he defining special interest groups as anyone who thinks gay marriage is wrong? Is he in some parallel universe?

    Gerald A (0843ed)

  7. The phrase “special interest groups” is pathognomonic. Every political group is a special
    interest group. But the left tends to use the phrase disparagingly. The SEIU, the NAACP,
    the Brady bunch are simply concerned citizens exercising their political rights.
    Corporations, anti-SSM groups, the NRA … “special interest groups.”

    Sorry, the midterms proved that halloween is over, and people are not frightened by
    old catch-phrases anymore. Except maybe in California.

    great unknown (261470)

  8. I’m not in a … jeez how could I be typing the comments if I was in a different universe silly

    brb

    happyfeet (a55ba0)

  9. You’re physically in this one.

    Gerald A (0843ed)

  10. Groups that wanted the justices ousted poured more than $650,000 into their effort, with heavy support from out-of-state conservative and religious groups. Campaigns that supported the justices and the current state court system spent more than $200,000.

    The retention challenge triggered a battle never seen in Iowa’s judicial history. Television, radio and Internet ads portrayed the justices as both activists and referees. Robo-calls urged a “no” vote. U.S. Rep. Steve King embarked on a statewide bus tour to rally “no” voters.

    The decision is expected to echo to courts throughout the country, as conservative activists had hoped.*

    I kinda rearranged that so you could see what I mean about how the tactics are not very America

    happyfeet (a55ba0)

  11. Odd, what could be more american than a ballot?

    SPQR (26be8b)

  12. a form of jury nullification on a minor scale

    great unknown (261470)

  13. I kinda rearranged that so you could see what I mean about how the tactics are not very America

    Sounds like a standard political campaign to me. Running ads etc. is not very America?

    Gerald A (0843ed)

  14. happy

    right, we should take their usurpations without a complaint.

    I am sorry, but isn’t this EXACTLY what a retention election is SUPPOSED to do? it gives the people a chance to put a check on their power.

    Aaron Worthing (b8e056)

  15. Sounds perfectly American to me, twinkle-toes; I mean, free speech and all that.

    Old Coot (ac0ff6)

  16. ok but it’s very easy to manipulate down-ballot races with outside monies cause they only get a fraction of the votes the top-ticket races get – I didn’t even get to vote for judges cause I printed out Mr. patterico’s recommendations but I left them on my desk

    I’m perfectly content for this to be a ymmv thing – I just think these tactics are sorta thuggy.

    plus I think it should be noted in parallel but still in the same universe that the Team R candidates what were most anti-gay all lost lost lost – Ken “homosexuality is a disease like alcoholism” Buck… Christine “no actually it’s an identity disorder” O’Donnell… Sharon “don’t want your dirty gay money” Angle… and Carl “Hi I’m Carl Paladino” Paladino.

    happyfeet (a55ba0)

  17. happyfeet,

    I infer from your posts on this subject the idea that opposition to gay marriage is a minority view. So therefore the races were “manipulated”. I think the result would have been the same if spending had been equal.

    Calling this thuggish is nonsense. If they had personal attacks on the justices then thuggish might apply.

    Gerald A (0843ed)

  18. The constitution usurping judges shoulda raised more money and gotten more votes. Simple.

    daleyrocks (940075)

  19. It’s not nonsense Mr. A not like jabberwocky nonsense or Steely Dan. Maybe I am not explaining myself good.

    On the one hand the social cons want these issues to be left up to the states. Okey dokey. Then they want to send large amounts of monies to the smaller states to gank a few judges to make sure the judges in the other states fall in line if they know what’s good for them. I don’t think it’s nonsense to call that thuggish.

    happyfeet (a55ba0)

  20. The constitution usurping judges shoulda raised more money and gotten more votes. Simple.

    indeed Mr. daley it is simplicity itself… but my concern is the idea that this campaign was aimed as much at other judges – judges who may have yet to hear a single gay marriage case at all – as it was aimed at our hapless cornhusker friends.

    happyfeet (a55ba0)

  21. “as it was aimed at our hapless cornhusker friends.”

    Mr. Feets – Not to be picky, but the cornhuskers are the ones with the big “N” for Nowledge on their helmets in Nebraska.

    daleyrocks (940075)

  22. happy

    > indeed Mr. daley it is simplicity itself… but my concern is the idea that this campaign was aimed as much at other judges – judges who may have yet to hear a single gay marriage case at all – as it was aimed at our hapless cornhusker friends.

    You say that like its a bad thing. The fact is that campaigning against someone and voting him or her out of office is not thuggery. its called democracy. So unless you think the people should just have no vote at all…

    Aaron Worthing (b8e056)

  23. oh. right.

    um… hawkeyes?

    happyfeet (a55ba0)

  24. no if my alternative is no vote at all I should definitely prefer the votings

    I got a sticker!

    happyfeet (a55ba0)

  25. The sad and sorry thing is that the Slaanesh-worshippers could have about 98% of what they say they want…if they backed down on the word marriage!

    A lot of people are afraid, with good reason (there’s precedent for this sort of thing) that if “gay marriage” becomes legal, their churches will be forced to accomodate these ceremonies, even if the church/religion in question strongly opposes homosexuality, on the basis of “equal accomodations.”

    Call it a “civil union,” OTOH, and make it something you pick up at the courthouse or city hall, and almost all opposition not based in mindless anti-gay feeling (which is much rarer than you might think; there’s reasons why Fred Phelps’ church is no bigger than it is) goes away. Unfortunately, the “gay community” is cursed with “leaders” who’re committed to pushing the envelope endlessly, heedless of the thought that this might, just might, provoke one almighty backlash.

    Technomad (414683)

  26. We tried to send a similar message to Rose Byrd and the other anti-death penalty judges out here in California a long time ago. How’d that work out for us?

    gahrie (ed7a50)

  27. Yes, Hawkeyes.

    I agree feets that the ideal American way is a “meet you at high noon with all of our cards on the table” (to mix metaphors). However, in few debates does it seem that the side that is ahead (logistically, tactically, or strategically) stops to give other views the opportunity to present their own case in its strongest terms. So when one group trying to outmaneuver the will of the people complains about being outsmarted by someone else, I see it as sour grapes and nothing more, certainly nothing of a principled moral highground.

    In short, you stupid plebes are going to ruin our activism at this rate.– AW

    I think that is a great summary of the judges’ comments. I’m sure King George and his advisors had similar feelings 200+ years ago.

    While I am certain there are drawbacks about the retention approach, in some ways I think every elected official, at least on the fed level, be subject to at least one, say 1/4 to 1/2 through their term of office. I think it would cut down on the saying on thing at election time then doing something else, then trying to CYA at next election time.

    I think representative democracy, like the law, works great when educated people of good character with similar resources come together to decide on a matter. Often we’re left wishing for any one of the three.

    MD in Philly (3d3f72)

  28. “Odd, what could be more american than a ballot?”

    – SPQR

    The preservation of inalienable rights?

    Leviticus (30ac20)

  29. Changing the definition of words is an inalienable right.

    JD (c8c1d2)

  30. Is he in some parallel universe?

    No, but as a card-carrying liberal, his reasoning capacities operate in a place with different physical laws…

    IgotBupkis (9eeb86)

  31. Just as in CA when we kicked out CJ Rose Bird, and two of her “usual suspects”, every now and then, the electorate has to take a 2×4 to the head of the judicial class to get their attention (the Real Missouri system).
    Well Done, IA!

    AD-RtR/OS! (3e686d)

  32. I’m not a liberal at all I’m a staunch conservative my favorite part is cutting the spendings

    what’s your favorite part?

    happyfeet (42fd61)

  33. groups that wanted the justices ousted poured more than $650,000 into their effort, with heavy support from out-of-state conservative and religious groups. Campaigns that supported the justices and the current state court system spent more than $200,000.

    Although Iowa is probably a fairly inexpensive state to spend money on in this manner, this kind of outlay is positively nada, bupkis, the big zero. If that was all it took to push the ledger the other way on this issue, then one could make a case that the electorate was none too thrilled with the judges usurping their input in the first place, and were itching to make their feelings known. I can’t imagine that an expenditure of this size made that much of a difference – this is still Iowa we’re talking about, despite Mr. GI Joe combat flier (aka war hero/liar) Senator Harkin.

    Dmac (ad2c6a)

  34. All right, pikachu tell me five programs you’d cut or outright zero out.

    ian cormac (c07a45)

  35. I’m not a liberal at all I’m a staunch conservative my favorite part is cutting the spendings

    what’s your favorite part?

    Then get ready to fall in love with Jim Demint – that guy’s already telling the MSM what he’s going to do to the budget ASAP. And if teh One doesn’t like it, here comes the shutdown of DC – and this time, no one among the populace will give a damn.

    Dmac (ad2c6a)

  36. $650,000 is a lotta corn… but Mr. Dmac I see what you’re saying – so what then is the threshhold of unseemlyness?

    Cutting spending!

    1.) The Post Office. Get rid of it. All they do is bring me Ralph’s fliers and I have to keep checking it in case they send a jury summons. How annoying is that? That’s cool about the 1.99 tri-tip though – we didn’t have tri-tips in texas.

    2.) Obamacare. Get rid of it. It’s way gayer than gay marriage.

    3.) Federal employees. They can’t unionize plus all their pay gets cut 10% across the board I don’t care who you are. And that’s just a start we’ll be back later to cut more so don’t go buying a new car, loser.

    4.) Monies for the regulation of ephedra. Stop it. Ephedra is now legal and Meghan’s pitiful sad useless daddy will just have to deal with it.

    5.) The Angeles National Forest. Cut that bitch down. happy wants a sweet 2-bedroom condo for $160,000 and we’re gonna need lots of room to grow for that to happen.

    happyfeet (42fd61)

  37. *threshold*

    happyfeet (42fd61)

  38. but Mr. Dmac I see what you’re saying – so what then is the threshhold of unseemlyness?

    I honestly don’t know, but I’ve seen that amount spent on the silly little Aldermanic races here in my hood. So it can’t be that much, I don’t think.

    Dmac (ad2c6a)

  39. Ephedra, feets? I took that stuff way back when it was only found in granola health food stores in the late 80s. After a few doses in which my heart almost exploded, I threw the bottle away.

    Dmac (ad2c6a)

  40. we have to know how much a 30 second ad costs in Des Moines and a few other markets like the Cedar Rapids … here are the people for that… I can’t think how else to find out except for calling stations

    happyfeet (42fd61)

  41. I think ephedra is real different from person to person … for me it was … days with were better than days without

    happyfeet (42fd61)

  42. Are you sure you threw it away?

    happyfeet (42fd61)

  43. The next time the justices issue an equal protection decision, maybe they should REALLY define equal protection by the standards of the current generation. (Varnum v. Brien)

    Michael Ejercito (249c90)

  44. can we just get it out of the way that instead of gay marriage it should be called bisexual marriage cause Rupert Everett banged a chick once for reals and he liked it and also [insert Plato quote here]

    happyfeet (42fd61)

  45. This thread is funny. BTW, did you know Ricky Martin is homosexual?

    JD (c8c1d2)

  46. plus he’s a dad I think … I don’t know how many kids he has exactly

    happyfeet (42fd61)

  47. Ricky Martin and Anne Heche and Rupert throw a wrench in the genetic inalienable immutable argument.

    JD (c8c1d2)

  48. excuse me but I heard Ricky Martin was here throwing wrenches

    tom cruise (42fd61)

  49. ok but it’s very easy to manipulate down-ballot races with outside monies

    You know, one thing I note about liberals — they are allllll in favor of replacing the nation’s Consitutionally intended Republicanism with complete warm-body Democracy… they want EVERYONE to have a vote, no matter how incompetent, evil, “foreign” (They think Europeans and people in Beijing ought to have a say) or otherwise and generally unlikely-to-properly-exercise-the-right-of-franchise said voter may be.

    Yet anytime they get the chance, they actually demonstrate how little faith they have in said voter to be anything but a totally incompetent, first-rate idiot in their exercise of franchise.

    In this case, to wit, apparently the voters are utterly at the whim of monies spent to sway their votes. They can’t be trusted to really, really vote for themselves, after all — they’ll always vote for whoever spends the most money.

    That’s complete BS, of course — the Dems, for example, spent FAR MORE money this term than the GOP.

    IgotBupkis (9eeb86)

  50. IgotBupkis, I don’t know about the overall numbers, but there is wide variance from race to race – Meg Whitman spent 5x as much as Jerry Brown did, for example.

    aphrael (8883ae)

  51. but my concern is the idea that this campaign was aimed as much at other judges – judges who may have yet to hear a single gay marriage case at all – as it was aimed at our hapless cornhusker friends.

    Indeed. This is all part and parcel of a representative democracy. We elect representatives to resist the whimsical nature of voters, but when enough voters express themselves in this manner, it makes it clear it’s not a mere whim, and that they must then actually make a moral choice between remaining in office vs. doing what they believe should be done for as long as they can, so that the voters have time to re-think their position which they, the representative, believe is so clearly wrong.

    And yes, judges, in this sense, are “representatives” — esp. when they are attempting to rule on interpretation of the law.

    They are acting as representatives of the will of the people — not their own beliefs, but the belief of The People as to what is Right and what is Wrong. When they ignore clear signals as to the will of the people, then they ought to be choosing to lose their position as a result. This forces them to reconsider their own determination that they, not the people, are Right.

    IgotBupkis (9eeb86)

  52. ____________________________________

    can we just get it out of the way that instead of gay marriage it should be called bisexual marriage cause Rupert Everett banged a chick once for reals and he liked it and also [insert Plato quote here]

    Hey, happyfeet, I post the following in honor of you or anyone else who takes opposition to same-sex marriage as though it’s almost a personal slap in the face. Who believe such a stance is similar to, say, assuming a guy who’s 5’2″ automatically should or shouldn’t be able to play in the NBA.

    [Famed British actor] Rupert Everett, whose autobiography will be released next month, admitted to an `on-off affair’ with Bob Geldof’s late wife Paula Yates.

    The gay British actor Everett, 47, said he had a sexual relationship with Yates while he was married to Geldof.

    He has also admitted to sexual encounters with actresses Susan Sarandon and Beatrice Dalle:

    I am mystified by my heterosexual affairs – but then I am mystified by most of my relationships.

    (I won’t say anything about Marlon Brando who was both a notorious womanizer and fan of same-sex activity with actors like Wally Cox — which Brando publicly admitted to in the late 1960s, no less — and even fell in love with the guy.) IOW, AC/DC.

    Mark (411533)

  53. Soooo it’s not OK for “big government” to interfere with local governance but it IS ok for some non-local group with a bunch of money and an ideological axe to grind to interfere with local governance.

    Does this mean that people on this blog are going to stop whining about George Soros and liberal rich dude whomever who are using their riches to fund groups that interfere with local decisions? Coz that’s perfectly OK right?

    EdWood (b0937d)

  54. “Monies for the regulation of ephedra.”

    I used to have to con pharmacists into believing I had asthma so I could buy that back in the 1970s as a substitute for speed so I could drink more. They didn’t put it on the counters and you had to ask them to sell it to you.

    daleyrocks (940075)

  55. EdWood – Answer your own straw man question.

    daleyrocks (940075)

  56. Why does Ed like to construct strawpeople?

    JD (c8c1d2)

  57. I don’t understand why when Iowa put in the equal protection clause and there were anti-sodomy laws on the books how these judges came up with the thought that the equal protection clause would allow SSM. If the Iowa equal protection clause allowed SSM, why weren’t the anti-sodomy laws immediately over turned?

    The money spent to told the voters what the judges did. As long as it wasn’t a lie, shouldn’t the voters make their own decision on how to vote? Or are the voters to stupid to make their own decision and need an elite class of people to rule over them and vote for them?

    Please answer my first question.

    Tanny O'Haley (12193c)

  58. Was that a straw man Daleyrocks? I’ll try again.
    So what AW is saying is that it is OK for a non-local organization/individual etc. to use their money to influence local governance.
    If that is so, then principled persons commenting here have no problem with organizations/individuals they don’t agree with doing the same thing.

    EdWood (b0937d)

  59. #57 Yeah it would seem to me that the best way out of the whole SSM thing would be for the state to only issue “civil union” contracts to homo or hetero couples giving them all the same rights and privileges. Then “marriages” would be strictly between the couples, their church, and their God.

    I see your point about people, even outsiders funding “education” about some judge or politician’s record, seems reasonable enough.

    Do you think that the people being “educated” should have the right to know who is putting up the money to fund their “education” and exactly what state or city the organization/individual putting up the money is from (the actual people/organization fronting the money, not the location of the post office box or empty building that is the “headquarters” for some dummy organization)? I do. That way locals can also decide for themselves whether or not they are being educated or just manipulated by outsiders who are shoving their noses and cash into a local issue that is none of their business.

    EdWood (b0937d)

  60. ephedra is regulated because it can be used as a precursor for the manufacture of methamphetamine…

    IOW, you’re not going to see its regulation end any time soon.

    redc1c4 (fb8750)

  61. IgotBupkis, I don’t know about the overall numbers, but there is wide variance from race to race – Meg Whitman spent 5x as much as Jerry Brown did, for example.

    I’d like to see you cite where that figure came from… The LA Times, perhaps?

    As you ought to know from prior entries here at Patterico there are one hell of a lot of whoppers floating around in regards to this whole deal.

    And I’ll particularly point you to this one:

    L.A. Times Headlines Perpetrate Outrageous Distortion of Campaign Finance Figures in California Gubernatorial Election

    I look forward to your sputtered denials of the real truth enhanced clarification of my understanding of the reliable sources fro whence your statistic came from…

    IgotBupkis (9eeb86)


  62. excuse me but I heard Ricky Martin was here throwing wrenches

    A mistake in hearing or speaking…

    He was in here looking to throw wenches, now that they’ve outlawed dwarf tossing and all…

    IgotBupkis (9eeb86)

  63. If that is so, then principled persons commenting here have no problem with organizations/individuals they don’t agree with doing the same thing.

    As long as what they say is, by and large, the truth (at least to the degree usually applied to corporate advertising in general), then yes.

    That goes for ANY organization, no matter what they support.

    One codicil, however — buying otherwise unwanted/unneeded ad slots so as to eliminate the opportunity for the opposition to speak is not cool.

    For example, if either the Tea Party or Move On used an enhanced war chest to buy 3x the number of slots they needed (substantially reducing the available slots, and/or driving up the price of advertising excessively), and then sold the slots they did not use to anyone EXCEPT those with an opposition message, that’s the advertising equivalent of shouting down your opponent, and is morally reprehensible.

    [fished from the spam filter. i am not sure why this got caught igot, but you might keep an eye out for this happening to other comments.]

    IgotBupkis (9eeb86)

  64. Shorter Iowa Supreme Court: “we’re smarter than you Iowans and the people who wrote the constitution, so we are going to do our own thing!” It’s good to see politics removed from the issue.

    I love how this post as to resort to the use of “in other words” several times. It allows AW to insert words into the judges’ mouths. AW can’t take on their arguments legally, so he gets out the “judicial activism” stamp and assumes that the judges actually believed that their decisions were against the Constitution. Strawman much?

    It’s kind of embarrassing when a lawyer invokes the phrase “judicial activism” simply because he doesn’t like the outcome of a case. Laymen can be excused; they’re not expected to know better. But trained lawyers ought to be able to understand the legal arguments, even of those they disagree with, and not simply assume that the outcome was the result of judges’ “activist agenda”.

    That said, isn’t it just possible — possible — that judges actually DO more about equal protection than, say, the typical Iowa voter?

    Kman (d25c82)

  65. Why is it that the leftists trot out that it is not judicial activism when it so obviously is? Makes the rest of your temper tantrum seem disingenuous, when you lead with a falsehood, kmart.

    JD (c8c1d2)

  66. KMan, the judge’s own words in their “official statement” make clear AW’s condensed version. Whether or not the legal arguments in the case were brilliant and forceful, it seems clear that their statement after losing in the election is saying, “You folks made a mistake by not retaining us, hopefully you’ll be smart enough not to make the same mistake again.”

    MD in Philly (3d3f72)

  67. kman

    When you say that the meaning of EP has changed all on its own, you are basically admitting to judicial activism.

    > But trained lawyers ought to be able to understand the legal arguments

    Except it is not really a legal argument, so much as lawless policy making only thinly disguised as law.

    > That said, isn’t it just possible — possible — that judges actually DO more about equal protection than, say, the typical Iowa voter?

    and, according to the iowa supreme court, more than the framers of the constitution itself.

    If you want to argue that they are more enlightened than both the people and the framers of the constitution, well, knock yourself out. but that does not allow them to amend the constitution all on their own. But they are not even pretending to follow the constitution as written. This isn’t the result of greater expertise, but a conviction that both the people and the framers of the constitution were too backwards to be obeyed.

    Aaron Worthing (e7d72e)

  68. …but that does not allow them to amend the constitution all on their own. But they are not even pretending to follow the constitution as written.

    We don’t know what the framers of the constitution would have thought about many of our modern day issues. We only know the principles that they lay down.

    So when judges say that the first amendment’s protection of “free speech” applies to corporations giving political donations — even though the framers of the first amendment don’t SAY that — we understand that the judges are applying an expansive view of the PRINCIPLES of what the framers wrote. You don’t have a problem with that, but that’s only because you like the outcome.

    The same goes for equal protection in the 14th amendment. But, being a hack, you call that “judicial activism”.

    Really, it’s beneath someone trained in law.

    Kman (d25c82)

  69. This condescending superior than thou affectation by kmart is soooooooooooooooooooooooo cute.

    JD (c8c1d2)

  70. Why is the Iowa Court’s decision merely a ‘local or state’ issue?

    Doesn’t the ‘Full Faith and Credit’ clause make this a legitimate National issue?

    In the event the ‘married in Iowa’ same gender folks move to another state won’t they expect their ‘marriage’ to be legally enforceable?

    Old Bob (a2f97b)

  71. This just in: kmart is a law expert and knows more than all of you, including the poor, benighted host. Need proof? Just listen, he’ll tell you all about it. His beclowning continues apace.

    Dmac (ad2c6a)

  72. Kman: The First Amendment says only “Freedom of speech and of the Press”. It doesn’t “SAY anything” about broadcast radio, broadcast television, cable television, telephones, or the Internet.

    Therefore it would be perfectly Constitutional to make it criminal to emit any statement whatever about any officeholder or candidate for office by these mediums without the explict previous approval of a “Fair Election Commission” appointed by the President. Right?

    Citizens United struck down a law made by Congress clearly “abridging the freedom of speech or of the press”. A more precise application of the 1st Amendment is hard to conceive.

    Varnum v. Brien (the SCoI) decision which got those Justices dumped cited the very general term “equal protection” to require that a fundamental social institution be radically changed in a manner completely without precedent in human history.

    There is a fairly simple 3-part test for judicial activism. A ruling is JA if:

    1) the ruling imposes or requires a drastic change in law or policy, overriding the expressed intent of the legislature or the people, or usurping the authority of the legislature.

    2) the ruling has no clear basis in or may even be contradicted by the explicit Constitutional or statutory language cited.

    3) the ruling reflects the personal preference of the judge or judges who issued it.

    Varnum passes all three parts.

    Citizens may pass only the third. It cannot be said to impose a radical change in law, since the language struck down was novel and had not yet been enforced.

    Rich Rostrom (f7aeae)

  73. Old Bob

    Why is the Iowa Court’s decision merely a ‘local or state’ issue?

    Doesn’t the ‘Full Faith and Credit’ clause make this a legitimate National issue?

    In the event the ‘married in Iowa’ same gender folks move to another state won’t they expect their ‘marriage’ to be legally enforceable?

    I agree with your concern and that was the reason for the Defense of Marriage Act (DOMA), to protect states who don’t recognize SSM. Unfortunately DOMA was just recently declared unconstitutional which I believe makes the “Full Faith and Credit” clause a problem for states that don’t recognize SSM. All states will have to recognize SSM if DOMA is not held as constitutional.

    For you legal scholars out there who believe in SSM (or don’t), can you reconcile the decision of the Iowa supreme court saying that the equal protection clause of the Iowa state constitution supports SSM when there were anti-sodomy laws in Iowa at the time EP was put in the Iowa state constitution?

    If the Iowa equal protection clause created a “right” to SSM, why weren’t the anti-sodomy laws immediately made null and void?

    I’ve asked this question on other posts and have yet to get an answer. Anyone???

    Tanny O'Haley (12193c)

  74. There is a fairly simple 3-part test for judicial activism. A ruling is JA if:

    1) the ruling imposes or requires a drastic change in law or policy, overriding the expressed intent of the legislature or the people, or usurping the authority of the legislature.

    2) the ruling has no clear basis in or may even be contradicted by the explicit Constitutional or statutory language cited.

    3) the ruling reflects the personal preference of the judge or judges who issued it.

    There’s nothing “simple” about that test, since it is mostly subjective:

    (1) What counts as a “drastic” change? Who decides that? And given that most bills come about as the result of compromise, how can one define “the expressed intent of the legislature” on statutes? What is the “expressed intent of the people” (note we just had an election and you can’t find two “experts” who agree on what the people were “saying”)

    (2) I have yet to see a ruling, even one that I strongly disagree with it that has absolute NO — zero, zip, nada — basis in explicit Constitutional or statutory language. Judges write opinions — you can read their “basis” within those opinions. You may not agree with the basis of their opinions, but to say that the basis doesn’t exist at all? That’s either hackery or stupidity.

    (3) And how do you show the “personal preference” of the judge or judges who issue opinions you don’t like? Who among us is psychic?

    Sorry, friend. “Judicial activism” — whether used on the right or the left — is just subtle code for “I don’t like this outcome and I couldn’t care less about (or don’t understand) the rationale for it”

    Kman (d25c82)

  75. kman, can you answer any of my questions in comment 72?

    Tanny O'Haley (12193c)

  76. Probably not the right thread for this … but:

    If, in fact, a government (or, in theory at least, OUR government) is legitimized by ‘the consent of the governed’ – isn’t The Constitution the document which spells out the terms and conditions of that ‘consent’?

    If so, then it represents a contract between the government and the citizenry (and specifically spells out the manner in which the citizens can change those terms.)

    Should it not, by this reasoning, be interpreted by the ‘Four Corners of the Document’ rule?

    If so, then inferences, penumbrae, and other such newly discovered interpretations are – by any measure or political cant – invalid on their face.

    If the citizenry wants to make changes to the document we are free to do so. If judges want to do so are they not in violation of their oaths to ‘protect and defend’ the Constitution?

    Old Bob (a2f97b)

  77. No, kmart, that is the way a leftist uses the term, trying to unmoor it from it’s original meaning.

    JD (681598)

  78. Kman

    Let me start with this line, because it is golden.

    > The same goes for equal protection in the 14th amendment.

    The amazing thing about that line is that the 14th amendment isn’t at issue in the case. Yes, they talk a lot about federal supreme court precedent on the 14th A, but they are exceedingly clear that they are interpreting Iowa’s constitution, not the federal constitution. And you don’t even have to read very much of the opinion to know that. For instance here are the very first lines of the opinion:

    > In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court.

    So care to explain Kman? Did you fail to read it and just proceeded to defend the ruling having no idea what it said? Or did you read it and fail to understand this basic and obvious point?

    You have forfeited your right to lecture me about the interpretation of law.

    Rich

    I will quibble with your definition. For me its much simpler. 1) did they follow the law, including the constitution. 2) if they didn’t, were they at least trying to do so? The quoted passage shows they were doing neither. Whether it is a drastic change or a small one, I don’t care.

    Tanny

    > I’ve asked this question on other posts and have yet to get an answer. Anyone???

    I hope you understand that the reason why I am not providing an answer is because I agree with your point.

    Old Bob

    That seems like exactly the kind of thing to talk about in this thread. And yes, I think that is pretty close to being exactly right.

    Aaron Worthing (e7d72e)

  79. A.W. – Why would Kman bother to read the decision? He just knows things. He imagines himself to one of the liberal elite and therefore superior the the rest of the nonliberal commenter here. Deal with it, or not. I choose not because he’s a buffoon.

    daleyrocks (940075)

  80. A.W. – before you hand me any ‘atta boys you should know that I consider Marbury to have been a judicial usurpation of authority.

    Old Bob (a2f97b)

  81. Old bob

    Well, fair enough. so you don’t think there should be judicial review at all?

    I mean suppose a man is on trial for saying something critical but truthful about the president. the courts can’t say, “case dismissed, because he cannot be tried for truthfully criticizing the president”? i am honestly asking, to see how far your philosophy goes.

    Aaron Worthing (e7d72e)

  82. A.W.

    Fair enough — first let me address Marbury.

    Art. 3, sct. 1 offers merely the broad language ‘the judicial power of The United States’. Sct. 2 grants appellate authority over fact and law and (for me the key words) ‘with such exceptions and under such regulations as the Congress shall make’.

    The Judiciary Act of 1789 created the Federal Trial Court system – and granted the right of Mandamus to the Supreme Court.

    Marbury argued (and I agree) that the Constitutional language provided a framework for Congress to refine. Marshall disagreed.

    Having done so, Marshall then bootstrapped that disagreement into a ‘conflict’ which the Court had to resolve. That resolution was (surprise!!) Marshall was right, Congress wrong, and therefore that portion of the Judiciary Act was unconstitutional. Loverly; and upon this reasoning rests the foundation upon which the house of ‘judicial activism’ is built. (As an asside – I believe the political animosities of the Marshall, Madison, and Jefferson factions were the important – yet unacknowledged – ‘facts’ being reviewed. But then I’m a cynical sorta’ guy.)

    Kinda’ like when the Cal. Supreme Court placed a ‘moratorium’ on Capital Punishment then, upon noting the absence of executions, declared it to be ‘unusual’ and therefore unconstitutional.

    Judicial Review? Sure, absolutely, and unquestionably (See Art.3, sct. 2). Deciding on the Consitutionality of a law – no problem. Deciding what the law ‘should be’. No thanks.

    Further, when sitting as an ‘Appellate’ Court the process is more important than the result. When a court takes the view that ‘Party A won and we think that’s unfair so we’ll craft a ruling to find in favor of Party B’, they have overstepped the judicial boundary. Bad cases don’t just make bad law – they also make bad judges.

    That the answer you were looking for or do you want more? Happy to oblige.

    Sorry I took so long to answer – had to run errands before the Grandkids got home.

    Old Bob (a2f97b)

  83. Old Bob

    Okay, so you feel that marbury was just a crap ruling but in a way that had nothing to do with judicial review. there are some people who say that marshall misread the statute.

    i will say that the reasoning behind judicial review was rock solid, imho, but i am admittedly less certain of their statutory construction, so i won’t dispute that one.

    i think that answers my question, too.

    And don’t apologize for taking a while. you are allowed to have a life. :-) i mean for God’s sake, grandkids are a precious commodity. i hope you are not taking time from them to talk about this. :-)

    Aaron Worthing (e7d72e)

  84. the reasoning behind judicial review was rock solid,

    Someone has to say what the laws mean. As that plaque on the Supreme Court building notes, that’s their role.

    Marbury was a solution to a crisis, which is not a good way to generate sweeping power. And we have so many examples of the Court saying that the law means something new now, that people are frustrated with the entire enterprise.

    Loquacious D (b54cdc)

  85. Taking time away? Never happen – the youngest prefers SpongeBob to ‘Old Grouchy’ and the oldest is now involved in THIS discussion (she’s sitting beside me with a copy of the Consitution on her desk and a summary of Marbury on her lap-top).

    Let me add here some further thoughts on the discussion –

    As an attorney (I’ve assumed such from other posts by and to you) you are charged with advocating the facts and/or law in a light ‘most favorable’ to your client – however strained that exercise may be. Your training taught you to use that law favorable to your client while disparaging the opposition’s use of the law favoring them. The fact that you may have argued their side only the week before in a different case is irrelevant to today’s case. There is abundant conflicting law on most everything at issue that you can always find SOME authority to support today’s position.

    My problem with ‘judicial activist appellate judges’ is their eagerness to adopt that same advocate’s role to support their pet ’cause du jour’. There’s always some precedent somewhere with which to support the argument.

    That’s why I said the appellate judge must honor the process over the result. Neutrality is difficult but we citizens have a right to expect it. Let the Consitution ‘live’ through the amendment process – not the case-by-case advocacy of judges.

    Will there be the occasional ‘unjust’ result for particular appellants – yep. But in all my years I have yet to see any law, decision, or bureaucratic act that does not harm some one or more people. Life ain’t fair – but that’s no reason to allow judges to abandon their oaths of office.

    Whew, time to unpush the button —-

    Old Bob (a2f97b)

  86. Old Bob, I feel the same way to some extent, but I wanted to note that lawyers are not supposed to present a version of the facts that is incompatible with what they know. They are not supposed to present anything they are sure is a fiction.

    This is part of why lawyers ask clients to not tell them too much about their story.

    I disagree with that tendency. I don’t think clients should be entitled to a zealous defense in all cases, and I think lawyers should learn all they can about clients and only defend them honestly with that in mind (which is still possible, just not to the same extreme).

    Loquacious D (b54cdc)

  87. OK,button push again while I wasn’t looking —

    Loq. – My point was that there was NO NEED for the ‘reasoning behind judicial review’. Art 3, sct 2 provides all the authority needed for the exercise. It specifically states ‘both as to law and fact’.

    Marshall created a conflict so that he could deliver his partisan political blows behind the cover of his judicial robes. In doing so he set a standard by which any appellate judge can ‘justify’ his decisions – create a ‘situation’ or ‘conflict’, reach into his/her bag of precedent, and voila – justice !

    Old Bob (a2f97b)

  88. Loq.—

    Agree and disagree.

    Argue facts not fiction I have no problem with. I can see where the lawyer may have problems finding a ‘bright line’ when interpreting facts ‘in the light most favorable’ – but that’s for Canons of Ethics and subordination of perjury laws to deal with.

    As to the zealous defense position I must, respectfully disagree. Imagine yourself or a loved one who is genuinely innocent with horrendous facts and law such that every lawyer you go to says ‘I think you’re guilty I won’t defend you vigorously’. Uggghhh.

    Even worse, the lawyer who – 3 days before trial – says, “Now that I’ve seen the case and looked into your background, I think you are guilty so I’ll still defend you, just not as hard.”

    Nope, better the border-line ethics violations than that.

    Old Bob (a2f97b)

  89. Hmm, Kman disappeared. I wonder why… heh.

    Aaron Worthing (e7d72e)

  90. So care to explain Kman? Did you fail to read it and just proceeded to defend the ruling having no idea what it said? Or did you read it and fail to understand this basic and obvious point?

    I was speaking generically to the issue of claims of “judicial activism”, whether it applies to interpretations of the First Amendment, the 14th Amendment of state equivalents of the 14th Amendment.

    And my point was that cries of “judicial activism” aren’t legal arguments, by definition. When someone says “the judges here are judicial activists”, that’s not taking the judges’ opinions at face value. It’s chickening out of a thoughtful legal critique and hiding behind the words “judicial activism”.

    Kman (d25c82)

  91. It’s chickening out of a thoughtful legal critique and hiding behind the words “judicial activism”.

    Sometimes it might be that, Kman. I know a lot of people use ‘judicial activism’ to condemn conservative opinions they don’t agree with while trying to be ironic, for example.

    But the concept of judicial activism is a serious legal critique and it is certainly rooted in legal argument. YOU’RE the one dismissing the entire category of criticism, which seems like chickening out.

    Oh, and it was clear in the other thread you didn’t read the decision or understand the aspect of the constitution that pertained.

    [nickname corrected to the normal handle. A casualty of Sockpuppet Friday. –Aaron]

    Dustin (b54cdc)

  92. Kman

    > I was speaking generically

    Hahahahahaha. You were responding to my assertion that the iowa SC had engaged in judicial activism. who do you think you are fooling?

    Admit it, you didn’t even read the case. you critiqued my critique without having any basic idea what they actually said.

    And actually i am taking what they said at face value. on the face of it, they are saying they are not following the constitution as written.

    Aaron Worthing (e7d72e)

  93. But the concept of judicial activism is a serious legal critique and it is certainly rooted in legal argument.

    No, it isn’t “Keeeef”. Judges write opinions explaining the legal basis for their decisions. “Judicial activism” transplants those opinions and replaces it with “I was acting outside the law and based this decision on my personal preference”. That’s why it’s a copout.

    I don’t agree with about 100% of anything Scalia writes. But I don’t dismiss his opinions as “judicial activism” because he supports them with legal arguments, and I assume that he is sincere in his judicial philosophy.

    Kman (d25c82)

  94. Admit it, you didn’t even read the case. you critiqued my critique without having any basic idea what they actually said.

    I have no problem admitting it. I didn’t read the case because it wasn’t relevant to the point I was making.

    on the face of it, they are saying they are not following the constitution as written.

    Well, I think that’s more your “spin” of what they said and not so much what they actually said. But whatever floats your boat….

    Kman (d25c82)

  95. Actually, I did read the case now that I think about it, but it was when it came out last year….

    Kman (d25c82)

  96. Kman

    > I have no problem admitting it. I didn’t read the case because it wasn’t relevant to the point I was making.

    bwahahahaha!!! so i accused them of judicial activism and you rebutted it… by assuming they didn’t do it? bwahahahaha!!!

    And don’t try to claim that you did read it. you are alot of things, but you are not a stupid man. you would have remembered that it was just about state law, if you read it at all.

    Aaron Worthing (e7d72e)

  97. I have no problem admitting it. I didn’t read the case because it wasn’t relevant to the point I was making.

    Kman, at least you admit it. I’ll give you that. There are some who would have been obnoxious and said ‘prove I didn’t read it!’ I realize you’re backed into a wall, since your analysis makes no sense to those who read the ruling, but at least you owned this.

    And it actually does pertain to the point you’re making. You’re making a sweeping generalization of an entire type of argument, and you’re citing the law.

    What counts as a “drastic” change?

    Read the case before you scratch your head.

    I love how this post as to resort to the use of “in other words” several times. It allows AW to insert words into the judges’ mouths. AW can’t take on their arguments legally, so he gets out the “judicial activism” stamp and assumes that the judges actually believed that their decisions were against the Constitution. Strawman much?

    You don’t know that Aaron’s summary of the judge’s ruling was wrong because you never read the case. You insist he did this because he’s wrong?

    Strawman much?

    You didn’t even read the case before you condemned someone’s summary. You just decided to come in here and insist Aaron’s wrong with absolutely no justification.

    You just know he’s wrong, automatically, without even reading the case, and probably without reading all of Aaron’s comment.

    That said, isn’t it just possible — possible — that judges actually DO more about equal protection

    It’s easy to say things like this when you don’t even bother to read the ruling. You decided the judges were right and the people were wrong about a political issue, without even reading the case.

    What’s amusing is that you’re condemning other people for chickening out of a real argument, or of not understanding this case or the law, when you’re boasting you don’t even have to know what you’re talking about to be right.

    Aaron could say the sky is blue and you’d insist he’s wrong. None are so blind as he who refuses to see, Kman. You should not have specifically referred to this case if you hadn’t read it (and yes, you did).

    Dustin (b54cdc)

  98. And you denounced my analysis of the ruling without knowing what was in it on even the most basic level. And you had the nerve to call me a hack?

    [Um, i should have said that was to kman. –Aaron]

    Aaron Worthing (e7d72e)

  99. bwahahahaha!!! so i accused them of judicial activism and you rebutted it… by assuming they didn’t do it? bwahahahaha!!!

    Aaron’s rebuttal is just better.

    Kman doesn’t deserve a detailed response. He’s a waste of time. Can’t even bother to read a case?

    No Kman, you didn’t really read it. You certainly didn’t understand it. And you were out of line to insist arguments are right or wrong based on nothing but reverse psychology.

    Dustin (b54cdc)

  100. Dustin

    > And you were out of line to insist arguments are right or wrong based on nothing but reverse psychology.

    Wait, what if I said the Iowa Supreme Court was NOT being activist in that case? Would Kman then denounce the decision?

    And what if I said that socialism did in fact work? Would he turn into a capitalist?

    And what if I said I was opposed to freedom of speech…? Would he finally support it?

    Aaron Worthing (e7d72e)

  101. And you denounced my analysis of the ruling without knowing what was in it on even the most basic level.

    Yeah. When your “analysis” involved putting helpfully “translating” what the judges actually wrote and invoking “judical activism”, I would call that pretty amateurish analysis. I assume you’re certainly capable of better (see, e.g., the post relating to Arizona’s tax credit for school tuition donations).

    And I DO know what was in the opinion “on the most basic level”. That’s why I found your “translations” so laughable.

    Kman (d25c82)

  102. Wait, what if I said the Iowa Supreme Court was NOT being activist in that case? Would Kman then denounce the decision?

    And what if I said that socialism did in fact work? Would he turn into a capitalist?

    And what if I said I was opposed to freedom of speech…? Would he finally support it?

    Comment by Aaron Worthing

    Without a doubt!

    It’s not hard to predict what Kman says when I see his handle in the corner.

    I give him props for admitting he didn’t read the case while railing on your discussion of it. That takes integrity.

    But wait… he took that back for some reason.

    Dustin (b54cdc)

  103. Yeah. When your “analysis” involved putting helpfully “translating” what the judges actually wrote and invoking “judical activism”

    You say this like it’s unreasonable to summarize and conclude.

    Why?

    Dustin (b54cdc)

  104. kman

    > And I DO know what was in the opinion “on the most basic level”

    Except which constitution we were talking about. besides that you had a deep understanding of the intricacies of their ruling. bwahahahaha.

    Aaron Worthing (e7d72e)

  105. Except which constitution we were talking about. besides that you had a deep understanding of the intricacies of their ruling. bwahahahaha.

    I knew last year that it was based on equal protection — a concept, by the way, not conceptually different in Iowa than it is under any state constitution or the federal one.

    Kman (d25c82)

  106. Kman

    > I knew last year

    bwahahahahaha. face it, you shot your credibility.

    okay, i didn’t read it. no wait, i did! and i remembered it well enough to know you were wrong. except i didn’t remember which constitution we were talking about. bwahahahahaha.

    Aaron Worthing (e7d72e)

  107. i remembered it well enough to know you were wrong….

    Uh, brainiac, I didn’t say you were “wrong” (or right, for that matter). I said you were a hack for setting up strawmen (i.e., “translating” what the judges actually said) and doing objectively bad legal analysis (invoking “judicial activism”) when we both know you’re capable of more (e.g., your post on the Arizona school tax credit thingee).

    Kman (d25c82)

  108. kman

    > Uh, brainiac, I didn’t say you were “wrong” (or right, for that matter). I said you were a hack for setting up strawmen

    Bwahahahaha.

    Aaron Worthing (e7d72e)

  109. AW – why is it so afraid of acknowledging that it simply was judicial activism?

    JD (b98cae)

  110. JD

    It doesn’t believe there is such a thing. Because according to him, the constitution is what the courts say it, even if they say it is one thing on tuesday and another thing on wednesday. so there is no such thing as judicial activism, because it is legal because they did it.

    Aaron Worthing (e7d72e)

  111. It doesn’t believe there is such a thing. Because according to him, the constitution is what the courts say it, even if they say it is one thing on tuesday and another thing on wednesday. so there is no such thing as judicial activism, because it is legal because they did it.

    This has happened before.

    Read about Palko v. Connecticut.

    Michael Ejercito (249c90)

  112. micheal

    a better example are the flag salute cases in WWII, gobitis and barnette. They reversed themselves completely within three years.

    Aaron Worthing (e7d72e)

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    Balun (f06cb9)


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