Archive for November 27, 2010
Who Will Appoint Iowa’s Next Supreme Court Justices?
by David VanThournout
One of the questions facing members of the GLBT community and supporters of civil rights in Iowa is; Who will appoint three judges to the now vacant seats on the Iowa Supreme Court Bench? Governor Chet Culver? Or Governor Elect Terry Branstad?
I spoke with David Boyd, Board Administrator for the Iowa Judicial Nominating Commission about the likelihood of Governor Culver being able to appoint judges to the Iowa Supreme Court before he leaves office. He admits that it is conceivable but probably not likely.
Mr. Boyd was kind enough to fill in some of the details regarding the process going forward;
One hurdle that must be passed prior to the commission sending nominations to the Governor is the election certification. The Judicial Nominating Commission can’t move forward without that. Once the commission’s work has begun, applications will be collected for a period of approximately one month. Followed by a period of about two weeks to allow public comment. Nominees can then be sent to the Governors office for appointment.
Approximately one month to collect applications
Two week public vetting period (public is encouraged to comment)
Will Governor Culver have the month that is typical to mull over these nominees? No. He will need to make his decision within a matter of days. Not that this should matter at all since that is the whole purpose of sending nominees, each and every one of them is vetted and would not be a nominee if they weren’t fully qualified for the job.
One interesting side-show is the currently circulating conspiracy theory that Governor Culver will simply re-appoint the ousted judges. Mr Boyd suggests that while this is legally remotely possible, and the commission is in fact free to solicit anyone they feel is qualified for the position, the three un-retained judges themselves would not be applying and therefore could not be on the list for consideration.
While many members of the GLBT community are concerned that this will mean three new conservative appointments to the Iowa Supreme Court bench by incoming republican Governor Terry Branstad, Mr. Boyd pointed out that the Judicial Nominating Commission will be submitting the exact same list of nominees to the Governor of Iowa whether he happens to be Chet Culver or Terry Branstad.
It is not clear how this electoral climate in which we find ourselves is going to effect the nominating process itself. The pool of likely applicants is already very small and any appointments that are made will be up for a vote in two years.
In the end, the real question isn’t whether Chet Culver or Terry Branstad ultimately makes these judicial appointments, they are going to be submitted by the overwhelmingly democratic Iowa State Judicial Nominating Commission who I have no doubt will recommend the best possible nominees to the Governors office based upon the rule of law rather than political ideology. Who will appoint them is still just about anybody’s guess. The question remains; How much hate money from the right will invade and confuse Iowa’s electorate in 2012 when one more judge comes up for retention?
According to Todd Pettys, a law professor at the University of Iowa, regarding whether or not the other justices careers were also in jeopardy in 2012.
“Well, another one comes up for retention election in 2012, and the other three come up in 2016. They could face some resistance, though I think it’s doubtful that the justices’ opponents will be able to mobilize a successful opposition campaign the next time around.”
Conservative strategists would like to push the narrative that these “activist” judges are not bending to the will of the people. The truth is that the Iowa Supreme Court really made a constitutionally sound decision to rule in favor of allowing what should have been a given; A persons sexual orientation is a protected “behavior” no less than that of speech or religious preference or of race and so it logically follows that gays and lesbians are entitled to marry as much as heterosexual couples. It seems that while conservatives have vociferously suggested that they are not racists it is only because they’ve traded overt racism for bigotry. Not allowing members of the GLBT community the god given right to marry via a supreme court stacked with conservative judges does not make marriage righteous at all, it merely entrenches institutionalized hetero-sexist bigotry.
Professor Pettys points out that the Varnum ruling still stands and that based upon the doctrine of standing, the only path to contest the ruling through the Iowa Supreme Court would be for someone to claim that by allowing gays to marry, injury to their heterosexual marriage occurred. Professor Pettys believes, as do most civil rights advocates, that this argument is a non-starter and could never lead to a legitimate challenge of the Varnum ruling.
The only other way for this to happen is via constitutional amendment. Which, according to Current Governor Chet Culver he would be “reluctant to support amending the Iowa Constitution to add a provision that our Supreme Court has said is unlawful and discriminatory.” It is unclear how this will play out under Governor Terry Branstad over the next few years. An amendment preventing gays from marrying would only re-open the possibility of bringing a suit similar to the one that recently prevailed and again, the state would be in a position of liability which was already proven once to be indefensible. Not a strong conservative position if you ask me.
The sense of this I believe is that the tendency of Iowa to support civil rights is stronger than the inclination of conservatives to repeal the twentieth century. Iowa has a long and illustrious history of going against the national grain in favor of strong civil rights.
Seventeen years before Dred Scott was deemed merely property of his owner, the Iowa Supreme Court “refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions.”
Eighty-six years before “separate but equal” was struck down by the U.S. Supreme Court in Brown v. Board of Education, the Iowa Supreme Court ruled such practices unconstitutional in Iowa.
In 1869, Iowa was also the first state in the union to admit women to the bar and allow them to practice law. Three years later the U.S. Supreme Court affirmed the State of Illinois' decision to deny women admission to the bar.
Taken partially from Wikipedia;
On the Varnum ruling the court reached this conclusion;
“We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.”
My personal belief is that this (nearly) million dollars the American Family Association spent on punishing a supreme court which unanimously agreed that gays should have the right to marry and should not exist as second class citizens, at least in Iowa, was mostly about sowing a climate of fear and hate. The radical right sees Iowa as a major battleground that they must win in their greater war to institutionalize bigotry. One problem with all that is of course the long history that Iowa has protecting the rights of all citizens. Something we can all ultimately be proud of. The other problem they may have is that the Varnum ruling is widely regarded as being unusually sound and likely to influence other courts in the future. Not surprising as Iowa has for many years led the nation in protection of civil rights.
In the Varnum case the State of Iowa’s long standing dedication to the civil rights of its citizens has been upheld and it will take more than slinging a million dollars worth of mud on the Iowa Supreme courts recent ruling regarding the rights of GLBT citizens to change that.
VanThournout lives on the Mississippi river in Rock Island. He plays
guitar, writes poetry and music, designs websites, and organizes for a
more just and peaceful world. More than a decade ago David began
demanding meaningful employment rather than mindless work making
widgets. David now requires that he loves what he does and that it
actually makes the world a better place in a way that is sustainable. Follow David on twitter at twitter.com/badweatherrr