[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.]