Three newly elected Republican state representatives are making a lot of news. Kim Pearson, Glenn Massie, and Tom Shaw are drafting articles of impeachment, which would attempt to remove the remaining four Iowa Supreme Court Justices from the bench. The other three justices were ousted in November’s retention elections.
As one would expect, many conservatives, activists, and a certain radio show host have given the three a “hallelujah” for their willingness to stand up to the judicial branch. However, once again, I find myself at odds with those in the Republican Party who have chosen to go down this path.
I appreciate their zeal and willingness to take a stand, but all this talk about impeachment takes our eye off of the things that need to get done that are well within our power to accomplish.
What is impeachment?
The Iowa Code describes impeachment as follows:
“An impeachment is a written accusation against the governor, or a judicial officer, or other state officer, by the house of representatives before the senate, of a misdemeanor or malfeasance in office.”
The Iowa Code goes on to state that the House is required to specify the charges that they are bringing against an individual. If there is more than one charge, each must be stated separately. A majority of House members is required to impeach.
Once the House has passed impeachment charges, they must select seven members to prosecute the case in front of the State Senate. Since their objective is to impeach the four remaining justices, they will have to pass at least four separate impeachment charges and try each case separately.
The impeachment trial would begin after the legislature adjourns for the year. If the impeached justice is found guilty, they are removed from office and disqualified to hold any state office.
What is the case against the judges?
The basis of the impeachment charges against the four remaining justices stems from the Iowa Supreme Court’s unanimous decision in the Varnum v. Brien case. The legislators’ case basically says that the court usurped the legislature’s power when it issued its ruling. The Court stated that Iowa’s Defense of Marriage Act violated the equal protection clause in the constitution.
What would change if the impeachment of the justices is successful?
Besides removing the four remaining justices, nothing will change. The Varnum decision will still stand. The judicial nominating committee, which is dominated by liberals, will get to present three finalists to the governor for each vacancy.
Do they have a solid case?
The definition of a misdemeanor or malfeasance is very broad. It will also be difficult to prove that the justices actually legislated from the bench. The court is given the authority by the Iowa Constitution to decide on the constitutionality of the laws that the legislature enacts. The Court ruled in Varnum that the state’s DOMA law violates the constitution’s equal protection clause. As such, it voided the law.
In some of the interviews that Pearson, Massie, and Shaw have given to various media outlets, they have stated that county recorders were threatened with contempt charges if they failed to grant marriage licenses to gay and lesbian couples. Iowa Attorney Tom Miller demanded that the recorders comply with the court’s ruling, not the court.
It is imperative for Pearson, Massie, and Shaw to have a solid case against the four remaining justices. They have yet to put forward any proof that the justices stepped outside their constitutional bounds and violated any criminal provision of the law by issuing their opinion on the constitutionality of DOMA. To impeach, you must show a “misdemeanor” or “malfeasance.” That means stealing money or taking kickbacks or throwing cases for personal gain, not just interpreting the constitution poorly, which they did. The remedy for actual misdemeanors and malfeasance is impeachment. The remedy for disliking a judge’s judicial philosophy and opinions is a no vote on retention. As I’ve written numerous times before, it was a complacent governor and legislature that allowed the court’s decision to have the weight of law, not an overreaching judiciary.
What are the chances that the impeachment will be successful?
With a 60-seat majority in the Iowa House, it is very likely that there would be enough votes to pass the articles of impeachment against the four remaining justices. While success in the House is likely, the State Senate is a different story. To convict the justices, two/thirds of the senate would have to vote for impeachment. Ten Democrats must vote with all 24 Republicans for it to be successful. That means the impeachment of the justices is going absolutely nowhere.
What should be done instead?
Not only will the impeachment of the justices find defeat in the Senate, it also would distract the legislature from focusing on passing legislation that would help reinstate traditional marriage in the state. Instead of wasting time on impeachment that is sure to fail in the Senate, the legislature should work to pass an amendment to the state’s constitution defining marriage. They could also pass the Defense of Marriage Act again, but specifically make sure it is not subject to judicial review. They also should pass legislation or an amendment that would change the judicial nominating process in Iowa.
I understand that the legislature is capable of chewing gum and walking at the same time, but as we have already seen, the mere suggestion of impeachment has dominated the headlines. That puts the things that can actually remedy what ails us on the back burner. Likewise, while conservatives have been successful in removing members of the court through the retention vote, they have done nothing to change how the judges are selected in the first place. Expecting a different outcome while still using they current nominating system is foolish.
Conservatives scored a decisive victory on November 2nd when the three Supreme Court Justices were not retained, but all of the talk about impeachment does more to help liberal groups like the Iowa Bar Association and the Iowa ACLU raise money than it does to help Iowans who are frustrated with the courts.
Since the retention vote, the liberal left has been paralyzed by the defeat. The impeachment talk has revitalized them because it confirms all their main talking point, that the opposition to the justices is based solely on their decision in just one case. By continuing down the path towards an unsuccessful impeachment trial, these legislators are essentially giving their opposition fuel for their fire.
It would be wise for House Republicans to think long and hard before moving forward with impeachment. Do they want to expend their political capital on an impeachment case that is bound to fail, or would they rather pass a constitutional amendment, reinstate DOMA, and change the way we nominate judges in the state?
As we already know, passing constitutional amendments is no easy task. It also won’t be easy to pass a law that the Iowa Supreme Court has already struck down. Once again, it seems like some Iowa Republicans would rather go down the path that gets the most attention than choose to do the things that can actually accomplish their goals.
blog comments powered by Disqus