Ominous move against independent judiciary

Just 18 months ago, the Iowa Supreme Court declared that the state's law that defined marriage as between one man and one woman violated the constitution. It was unanimous, and thus gay marriage has been legal in Iowa since then.

Tuesday, three of those seven judges were up for a "retention" vote to retain their positions, and they all received a "no" vote. This does not change the court decision, but it was a brazen move by out of state anti-gay activists -- financed largely by the National Association for Marriage -- to intimidate judges nationwide with the threat of ouster for such votes. Their next move will be to try to get another case to come before the Iowa court and result in a repeal of that decision by a different panel of judges (these three will be replaced).

A little research explained how this "judicial retention vote" works in Iowa. It is a much better system than we have in Georgia, which is competitive elections between opposing judges. Although they are usually officially non-partisan, voters are left having to make choices that should not be left to politics, which leaves a whiff of trading independence and integrity for popularity and votes. Someone with a grudge against a judge for a particular decision could finance an outrageously expensive campaign against that judge. And, if they have to raise a lot of money to finance a contested campaign, just how independent can they remain?

In the Iowa system, judicial appointments are based on merit. An impartial commission selects a list of recommended judges from which the governor makes appointments. At the end of a judge's term, voters get a chance to vote yes/no on whether they should be retained for another term. If the vote is yes, they simply serve another term. If a majority vote no, then a replacement is appointed by the governor from among others the commission has rated on merit. It sounds like a good balance between an independent judiciary based on merit and still giving the people some voice.

Enter the the National Organization for Marriage, which spent $1 million to defeat these three judges. In contrast, as is usual, the judges did not raise money or campaign for retention. The same thing could happen in any state that elects judges -- but it would be worse because then the winner would be someone chosen by the anti-gay opposition to run without having to meet merit standards. In Iowa, at least there's a good chance that the replacements will make similar decisions on future cases, because their appointments will be made on merit rather than campaign promises or backing. But the message will extend from Iowa to judges in other states where they will face opposition in elections.

Gay rights groups are decrying this as a NOM attempt to intimidate judges and politicize the (supposedly) independent judiciary. The NOM president is crowing about sending the message "that support for gay marriage is a career-ending position for judges and legislators." Legislators are fair game for being voted out because of positions they have taken; it's clearly a partisan, political position. But this does raise serious questions about an independent judiciary if judges can be intimidated from interpreting the law as they see fit.

Ralph