The State of the Judiciary

On October 18, 2011, the PBS NewsHour ran a story titled “U.S. Civil Court System Needs Major Overhaul, New Book Declares.” The co-author is Rebecca Love Kourlis, a former Colorado trial and appellate judge. I do not know that I agreed with everything the author said in the interview. About half-way through the interview, however, without naming Iowa by name, she basically says that Iowa has the right formula:

States are all over the map on this front. States, many states, have partisan, contested elections. Other states have systems that look like the federal system. And then there are a bunch of states that are in between, that have achieved this balance between impartiality and accountability. …

The appointing authority, usually the governor, appoints, and then that judge serves a provisional term in office, during which there’s a judicial performance evaluation, a report card, if you will. And that’s about the kinds of things we have been talking about. Is the judge running the courtroom well? Is the judge making decisions in a timely and understandable way? Is the judge well-prepared, knowledgeable on the law?

That information is packaged and available to the voters. And then the voters vote yes, no, up, down on that particular judge as to whether they want that judge to stay in office.

Meanwhile, there is an interesting commentary by Andrew Cohen, who bills himself as chief legal analyst and legal editor for CBS News, a Murrow Award winner, and as one of the nation’s leading legal analysts and commentators in the Atlantic titled “It’s Time to Stop Bullying Judges.” Cohen’s theme is clear: “too few in high positions of government, on any level, seem willing to do what always needs to be done to stop bullies: stand up to them.” And, Cohen does mention Iowa by name:

All over America, GOP-led legislatures are pushing to impeach state judges. Lawmakers in Iowa, Massachusetts, Missouri, Oklahoma, New Jersey and Pennsylvania have moved in on the judicial branch, the most infamous of these crusades being the effort in Iowa to oust those state supreme court judges who voted in favor of same-sex marriage. Evidently that is still a “high crime or misdemeanor” to some.

Cohen goes on to say: “Some political or legal leader or cultural leader needs to emerge to candidly tell these legislators not just that they are dead wrong in their analysis but that they are doing their constituents a grave disservice by projecting their own failures on the judiciary.”

Message to the Iowa House Judiciary Committee

From: Frank Feilmeyer
Sent: Friday, January 07, 2011 10:49 AM
To: dwayne.alons@legis.state.ia.us; richard.anderson@legis.state.ia.us; chris.hagenow@legis.state.ia.us; dave.heaton@legis.state.ia.us; jeff.kaufmann@legis.state.ia.us; david.tjepkes@legis.state.ia.us; kurt.swaim@legis.state.ia.us; vicki.lensing@legis.state.ia.us; jo.oldson@legis.state.ia.us; rick.olson@legis.state.ia.us; tyler.olson@legis.state.ia.us; mark.smith@legis.state.ia.us; beth.wessel-kroeschell@legis.state.ia.us; Chip.Baltimore@legis.state.ia.us; Julian.Garrett@legis.state.ia.us; Glen.Massie@legis.state.ia.us; Kim.Pearson@legis.state.ia.us; Walt.Rogers@legis.state.ia.us; Jeremy.Taylor@legis.state.ia.us; RuthAnn.Gaines@legis.state.ia.us
Subject: Iowa Supreme Court

Dear House Judiciary Committee members:

As an Iowa attorney who has practiced law for 20 years and as a citizen interested in the supporting the Constitution and judiciary, I am writing to urge you NOT approve any articles of impeachment that may be filed against the justices of the Iowa Supreme Court. Any such action would be a complete repudiation of the separation of powers among our equal branches of government. It would really be an attack on the Iowa Constitution itself.

Even those who proclaim that the Supreme Court justices have overstepped their authority must admit that there are constitutional methods of redress for what they believe is an incorrect decision in Varnum v. Brien. If the Iowa Constitution and the rule of law is to be preserved, then these constitutional methods should be followed rather than this frontal assault on the members of the Court.

Moreover, and perhaps more to the point of any articles of impeachment, a unanimous ruling on the meaning of our Constitution could never constitute a misdemeanor or malfeasance. There is no just or reasonable interpretation of the Supreme Court’s action that ever would make any justice’s vote or opinion in this manner an impeachable offense. No matter how “bad” or “evil” or even “activist” anyone may portray the decision in Varnum v. Brien, there simply is no impeachable offense. It was, rather, a courageous defense of individual liberty.

We all know from our high school civics class the long established federal and state Constitutional tradition that (a) the judicial branch has the power to decide what the law is; (b) the legislative branch has the power to make new laws; and (c) the executive branch has the power to carry the laws into effect. “It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it….” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803). If the legislative branch of government does not like the way the judicial branch interprets or the executive branch executes, it may, if it can provide the required constitutional majorities, change that law. We must – at the cost of destroying the very underpinnings of our government – avoid this unprecedented attack on the judiciary.

Thank you for your time and consideration,

Stop attacks on the judiciary

Attorney Dan Moore, a past president of the Iowa State Bar Association, and a colleague with whom I have worked on numerous Bar Association matters, penned an excellent op-ed feature for the Des Moines Register titled Guest column: Obsessed with gay marriage, Vander Plaats has gone too far. Dan writes:

“The Iowa Supreme Court justices who wrote a unanimous opinion in Varnum committed no crime. To be impeached, a person must have committed a crime or engaged in malfeasance. When a justice works hard, researches the law, has legal assistants and law clerks research the law and issues a politically unpopular decision in one case, how can that possibly constitute ‘malfeasance’?

“The Iowa judicial branch has been recognized throughout the country as being one of the finest judiciaries in the United States. It has issued thousands of opinions that have been widely regarded as some of the best reasoned and well-thought-out opinions by any state court in the country. Yet because of one man’s obsession and desire to remain in the limelight, we are being asked to totally destroy one of the most highly regarded courts in the country on the basis of one politically unpopular decision.

“The 1839 In re Ralph decision that established there would be no slavery in Iowa was probably politically unpopular among some people at the time. Those justices were not impeached for ‘malfeasance.’ Imagine, if you will, seven new justices being selected for the Iowa Supreme Court. Imagine that they issue a politically unpopular decision in three or four years on another subject. It may be a decision you personally like. Should those justices be voted out of office or impeached for malfeasance?

“Justice should not be for sale. Justice should not be based upon which way the political winds may be blowing.”

Sound advice, and thanks, Dan.

Don’t mess with the judges

Iowa has a model system for selecting judges. Once again, after an important decision, the courts and the judges are under attack.

Iowa has a merit-based system for selecting judge nominees. Commissions comprised of citizen members appointed by the governor and elected by lawyers in the district select the nominees. Let me say it again, the nominees are selected for merit.

There are many states in the Union that have elections for judges. There are others that have nominations completely in the discretion of the governor. There can be no argument whatsoever that these systems of judge selection are far more susceptible to political manipulation and corruption. We do not have those troubles in Iowa.

Iowa has a model system for selecting its judges. Don’t just listen to me. Believe the nonpartisan Institute for the Advancement of the American Legal System and the O’Connor Judicial Selection Initiative, which state: “The best judicial selection models include four elements: (1) commission; (2) appointment; (3) performance evaluation; and (4) retention election.” This is the Iowa system for selecting judges.

Unfortunately, every time a controversial issue hits the courts, there is a campaign to punish the judges that make the decisions. There is always a cry of legislating from the bench. This year, there is even a gubernatorial candidate who proposes to change the selection system. We cannot, as educated citizens in an enlightened society, succumb to this, the lowest common denominator.

Update (16 Aug 2010): From National Public Radio: “The joke is that a Supreme Court is a lot less expensive to try to buy than a state legislature.” (quoting Bert Brandenburg, executive director of Justice at Stake). See Report: Too Much Money Going To State Court Races, http://www.npr.org/templates/story/story.php?storyId=129178835 (viewed 16 Aug 2010). The report is “The New Politics of Judicial Elections, 2000-2009: Decade of Change,” http://www.brennancenter.org/content/resource/the_new_politics_of_judicial_elections.

I repeat, we have a model system. So, please don’t mess with the judges.

P.S. The judges were right: The Iowa Constitution does protect the rights of individuals.