Thursday, January 20, 2011
On November 2, 2010, three Iowa Supreme Court justices stood for retention and were not retained by the voters of Iowa. This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution.
Filling those vacancies under the state constitutional process is done by the State Judicial Nominating Commission which accepts applications and create a list of three nominees for each vacancy for the Governor's appointment. The Commission has 15 members, 7 of whom were appointed and 7 of whom were elected by members of the Iowa Bar, as well as the chair who is the Iowa Supreme Court justice “who is senior in length of service on said court, other than the chief justice."
The gravamen of the complaint is that the plaintiffs, who are not members of the Iowa Bar, are denied their Equal Protection rights and their voting rights because they are excluded from participating in the elections of the elective members of the Commission.
In a 35 page opinion Judge Pratt dismissed the Complaint. He stated:
At base, Plaintiffs are asking this Court to recognize an entirely new substantive Fourteenth Amendment right. The Court declines Plaintiffs’ invitation to do so. It not the business of the federal courts “to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.” See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973). That is especially true, where, as here, Plaintiffs have failed to provide adequate legal support for their asserted “right to equal participation.” The Court concludes that Plaintiffs do not have a right, let alone a fundamental right, to “equal participation” in the selection of state court judges—at least not as that “right” is conceptualized by Plaintiffs.
Interestingly, Pratt's language reverberates with the very accusations that were lodged against the unretained Iowa judges - - - creating new substantive rights and essentially being "activist." The complaint was filed on behalf of four Iowans by James Bopp, Jr.
Judge Pratt's opinion analyzes whether or not the members of the Commission are representative of any constituencies and concludes they are not. His conclusion is straightforward:
Undoubtedly, the right to vote for political representatives is the bedrock of American
democracy. In this case, however, Plaintiffs are asking the Court to radically expand the scope
of this fundamental right beyond all existing precedent and to recognize an entirely new
Fourteenth Amendment “right” to greater influence in the selection of judges. Their claims,
therefore, are fatally flawed. Plaintiffs may prefer that Iowa had a different method of judicial selection, but absent a violation of a clearly-established constitutional right, the people of Iowa are entitled to retain the judicial selection system they chose in 1962.
According to the Iowa Judicial Nominating Commission, more than 60 candidates have filed applications (and supporting materials) for the 3 vacancies.
Relatedly, there have been proposals to impeach the remaining Justices who joined the unanimous opinion in Varum v. Brien: Press Release from Iowa representative here; Des Moines Register reporting here; NYT editorial here.