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June 13th, 2010

Judging Judges

By Nathan Tucker

Now that the primaries are finally over, Iowans can turn their attention to the general election in November in which they will decide not only which candidates to elect, but also which judges should be retained and whether or not the state should hold a constitutional convention.

Unlike states that have judicial elections, Iowa has adopted the “Missouri Plan” in which nominating committees pick the names of two (or, in the case of appellate courts, three) candidates out of a pool of applicants to send to the governor, who then selects one to fill the vacancy.

After one year in office, and then at varying intervals thereafter depending on the type of judicial office held, judges stand for a retention vote.  They do not face any challengers on the ballot.  Rather, voters are simply asked whether or not a particular judge should keep their job based on their performance.

Of the unanimous Iowa Supreme Court that struck down the state’s DOMA statute last year, three of the justices stand for a retention vote this November:  Chief Justice Marsha Ternus and Justices Michael Streit and David Baker.

In the final GOP gubernatorial debate during the primary, two of the contenders, both of whom eventually lost, stated that they would urge Iowans not to retain these justices.  They were criticized for this by some in the media, who argued that “voters, in retention elections, may [only] remove judges for cause (such as malfeasance)—not for rulings that are unpopular.”

There is nothing, however, in the language on the ballot itself or in the Iowa Constitution or the Iowa Code that prevents voters from removing judges for any other reason than “cause.”  The Iowa Constitution limits the use of impeachment to “any misdemeanor or malfeasance in office,” but there is no such limitation on the ability of voters to refuse to retain judges at the ballot box.

These media critics are right to be concerned that the threat of a campaign to unseat a judge may undermine the judicial independence necessary for that branch to enforce constitutional limits on the other two branches.  Prudence, therefore, would caution that this option be reserved for those cases in which a judge (or judges) clearly engaged in judicial activism.  Judicial activism is an oft-used, but rarely defined, term thrown about by those on both sides of the ideological spectrum to label decisions that they don’t agree with.

But for a constitutionalist, judicial activism is defined by a clear departure from the original understanding of the words of the Constitution.  Certainly those guided by such original understanding do not always agree among themselves in every case, but originalism provides the perimeters for what mainstream constitutional jurisprudence should be.  Judges who embark on adventures outside those perimeters engage in judicial activism guided only by their own sense of ideology rather than the constitutional text.

Given this definition, the Court’s decision in Varnum v. Brien (2009) can be described as nothing short of judicial activism.  The “right” found by the Iowa Supreme Court is not, contrary to public opinion, the right to marry.  The Court did in fact find a “right to sexual orientation,” a nebulous concept the Court never bothered to define or limit in any way in its sixty-nine page opinion.

But the Court did more than declare a constitutional right to sexual orientation that must be entitled to all the marriage benefits that heterosexual couples enjoy.  Rather, the Court determined that everyone has a right to self-identity.  For in finding the right to sexual orientation, it determined that it is not necessary for sexual orientation to be an immutable characteristic.

As the Court rightly pointed out, a human trait that defines a group is “immutable” when the trait exists “solely by the accident of birth” or when the person with the trait has no ability to change it.  The concept of immutability is important when examining an equal protection claim, because the “inability of a person to change a characteristic that is used to justify different treatment makes the discrimination violative of the rather basic concept of our system that legal burdens should bear some relationship to individual responsibility.”

Knowing that science has not shown sexual orientation to be immutable, the Court redefined immutability to mean that “the identifying trait is so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change it.”  “Because sexual orientation is central to personal identity and may be altered, if at all, only at the expense of significant damage to the individual’s sense of self,” the Court held that sexual orientation is now a suspect class “entitled to [the same] consideration as…any other group that has been deemed to exhibit an immutable characteristic.”

This concept of personal identity and sense of self is the new “right” found in the Iowa Constitution by a Court who embarked on judicial adventurism out of the originalism mainstream.  Unfortunately, this right is neither new nor limited to sexual orientation or marriage but has also been used by courts to justify abortion and a right to die.  It is the vogue (and vague) right used by courts when they want to read into the constitution rights that aren’t there.

The elasticity of this new right can be found in the U.S. Supreme Court’s rather utopian explanation of it in its decision in Planned Parenthood v. Casey (1992), n which it affirmed Roe v. Wade (1973):

Our law affords constitutional protection to personal decisions relating to…matters[] involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy…

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (emphasis added)

Given such an expansive individual right to self identity, government is only possible if its citizens unanimously and freely acquiesced their right to self identity when each new law is passed (a phenomenon not yet experienced in the history of mankind) or by its selective enforcement by the judiciary when it suits their purposes.

By picking and choosing which values constitute this right to self identity, our Supreme Court justices have taken upon themselves cart blanche authority to define for us what our identity really is.  Judicial activism is an understatement for this coup d’etat by the Court.

Voting these justices out of office will not overturn Varnum, only a constitutional amendment will accomplish this in the long term.  To that end, our efforts should be primarily focused on passing a constitutional amendment out of the statehouse or a constitutional convention.  But at the same time, voters have every right, if not an obligation, to remove from office justices such as these who engage in judicial activism.

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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 [email protected]

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