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January 12th, 2011

The State of the Iowa Judiciary is Depressed

By Chuck Laudner

The State of the Iowa Judiciary is apparently depressed.  While listening to Justice Mark Cady’s address, I thought the only thing missing was some Ken Burns-style fiddle-playing in the background.  I can’t say it was far from what I expected, but I was struck by the constant presence of despair and defensiveness, even when Cady was trying to show pride in the Court’s legacy.

Rather than looking forward, the entire address was a recap of the same failed arguments that led to the ouster of three justices on November 2nd.  In fact, Cady found an opening to repeat the Chamber of Commerce survey that placed Iowa 4th.  Not explained (again) is that this survey was concerned with lawsuit abuse.  Cady could have congratulating Iowans on their unwillingness to pursue frivolous lawsuits.  But, then again, he didn’t mention that the same survey rated Iowa judges 19th in competency.

It was simply a selective rehash of the retention vote.  The only hint of what may lie ahead was an admission that the history isn’t written yet and that Iowa needs a dialogue.  The offer to be open, communicate, and work together seems only intended to allow them to continue doing what they’re doing.  And maybe the cause for Cady’s distressed tone is because he knows nothing is going to change.

Tying all of the woes the current court suffers to the Varnum opinion was just one false premise wedged into the address.  It may be the most high profile case, but there are several cases the court erred.  And the most egregious false premise regurgitated throughout the speech is that judges are infallible.  Cady would have us believe that since they are judges, their judgments are final and perfect.  In touting the thousand cases heard before the court, Cady did not answer the question of whether they ever got one wrong.  They have, but they won’t admit it.

And thus again the arrogance is exposed.  The same arrogance that was indeed the ultimate cause of the November 2 result is still rampant.  The entire culture of the judiciary and its defenders wholly believe that the ordinary Iowan lacks any and all intellectual capacity to challenge their pronouncements.  (How dare you disparage the judiciary?  I just quoted Alexander Hamilton!)  Rather, those not enjoined in the brotherhood of nuance and wisdom must apply a greater understanding.  This enlightenment only arrives by agreeing with edicts of the court.

I also assumed that a full defense of the Varnum opinion, by none other than its author, would make clear to all what the definition of “unimagined” rights. Would the justices agree that swearing an oath to the “unimagined” rather than the text of the Constitution obliterate our guarantees?  The hour provided for a State of the Judiciary certainly could have included a delineation of the limits of the “unimagined.”

It is insisted that we accept the premise that the Court is the bastion of civil rights.  Again today, Cady mentioned Brown v Board of Education as the shining example.  But there is one significant difference between the two verdicts.  In Brown, all Americans understood what the Supreme Court believed was constitutional – all children, regardless of race, must be integrated.  Yet Varnum simply told us what the Iowa supreme court believed was not constitutional.  So, what are the limits on marriage and does the state have a compelling interest in regulating it?

Justice Cady began his defense of the supreme court’s Varnum opinion with, “we understand how Iowans could reach differing opinions about this decision.”  However, the rest of the speech was a line of reasoning as poorly constructed as Varnum.  They, in fact, have no understanding of how Iowans could disagree.  Beyond the 90 percent irrelevancies, glaring omissions, and false premises, the speech highlighted the crippling arrogance of the court.  If Iowans cannot be held accountable for the sins of our fathers, neither can this court bask in the imagined glory of their predecessors.

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