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November 5th, 2010

A Judicial Tidalwave?

By Nathan Tucker
A conservative tsunami rolled across the nation Tuesday night, bringing with it Republican majorities to the U.S. House, governorships, and state legislatures.  But did the tidal wave also affect judicial races and ballot issues across the country?

Iowa has received much of the media attention for firing three of its state Supreme Court justices who last year discovered a constitutional right to same-sex marriage.  These soon-to-be former justices will not only be making far more money in private practice then they ever did on the bench, but they will be saluted by the Bar whenever they enter a room.  They are now martyrs in the eyes of their colleagues, and both of Iowa’s law schools will no doubt rename buildings in their honor.

But the tidal wave seems to have ended there, not even affecting the down-ballot judges who also stood for retention in Iowa.  In Polk County, for instance, District Judge Robert Hanson was retained by 66.34 percent, despite the fact that he was the trial judge who initially discovered a right to gay marriage.

Also in Polk County, District Judge Scott Rosenberg received 68.84 percent of the vote, even though he signed a waiver allowing two men to marry after Hanson’s decision came down.  Shortly thereafter, same-sex marriages were temporarily halted by a stay from the Supreme Court.  In Sioux City, District Judge Jeffrey Neary was retained with 58.5 percent of the vote, in spite of the fact that he had divorced a lesbian couple from Vermont in 2003.

Turning to other states, there was also an organized effort to remove Kansas’ four Supreme Court justices who stood for retention this year.  The condition of Kansas’ judiciary has been recently described as follows:

In just the last five years, the state’s supreme court has bankrupted the state by usurping the legislature’s role and massively overfunding an inefficient, big-government, union-dominated education bureaucracy. It has sheltered abortion providers from scrutiny by harassing state investigators sworn to enforce Kansas law. It has interpreted the state constitution, which forbids gambling, as meaning the state of Kansas can operate casinos all over the state because, um, they sell lottery tickets. It reliably mandates spending increases and coddles liberal lawyer friends while making some of them rich. Some of its wacky judicial decisions — including a hilarious rant by Justice Carol Beier, described here — are so embarrassing the justices condemn them themselves.

Unfortunately, all four justices were retained by at least 62% of the vote.  Anti-retention forces, lead primarily by the pro-life group Kansas for Life, focused their attention on Justice Carol Beier for several abortion rulings she made.  But despite their efforts, the Republican Party in particular, and even conservatives in general, failed to make this an election issue.

In Colorado, three of that state’s Supreme Court justices stood for a retention vote.  A group called Clear the Bench urged Coloradoans to reject all three justices, accusing them of:

● Unconstitutional Property Tax Increases (Mill Levy Tax Freeze)

● Unconstitutional elimination of Tax Credits & Exemptions (tobacco tax, “Dirty Dozen” taxes)

● Unconstitutionally re-defining Taxes as Fees (Colorado Car Tax, Ritter Gun Tax)

● Unconstitutional expansion of eminent domain property seizures (Telluride Land Grab)

● Unconstitutional usurpation of legislative power (judicial redistricting, school funding)

Again, all three justices were retained, though with only about 60% of the vote rather than the usual 70% plus.  Unlike the effort in Iowa, Clear the Bench was hampered in its ability to conduct radio and television advertising by only raising $45,000 for its efforts.

Though the 2010 tidal wave appears to have run out of steam after removing Iowa’s Supreme Court justices, there is some good news on the judicial front.  Despite millions spent by George Soros and midnight robo-calls by former U.S. Supreme Court Justice Sandra Day O’Connor, two-thirds of Nevadans soundly rejected a proposed constitutional amendment that would have changed the state’s judicial selection process to the Missouri Plan.

In the end, though a good year for conservatives, the 2010 tsunami was powerless to sweep the judicial retention elections as it did other races.  Time will only tell whether the successful anti-retention campaign against Iowa’s Supreme Court justices was an anomaly, or whether it can be duplicated here and elsewhere in the future.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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