The Iowa Freedom of Information Council held its annual luncheon, program and meeting earlier this month. The program this year was a little off the beaten path of open records and public meetings. At least, I thought so.
The program was entitled “Media Coverage of the Courts: The Good, the Bad and the Ugly”. I didn’t notice much of a focus on media coverage, but there was a strong presence of discussion around Iowa’s retention vote on justices and judges.
The makeup of the panel gave an indication of where the discussion was headed. The panel consisted of former Iowa Supreme Court Justice Michael Streit, Iowa District Court Judge Jeffrey Neary, Attorney Bill Brown with BrownWinick, and Rachel Paine Caufield, a professor at Drake University in the Department of Politics and International Relations.
Streit was the first panelist to speak and he set the tone. He was one of the three justices removed from the Supreme Court last year when Iowa voters refused to retain him and two other justices who must stand retention votes after their first full year and every eight years thereafter. It was interesting to hear his introduction that brought some dark Iowa history to those of us in attendance.
In April of 1933, a mob of farmers physically removed Judge Charles Bradley from his courtroom in the O’Brien county seat of Primghar. They mistreated him, but didn’t kill him (he died a few months later from causes not related to this incident). He was abducted because the farmers were worried that more mortgage foreclosures by the banks would be ordered by Bradley. Streit was presenting an example that judicial officers can be subjected to the whim of the people for doing what the law says the judge must do – sort of like the Varnum v. Brien case that many attribute to non-retention of the three Iowa Supreme Court justices last November.
District Court Judge Jeffrey Neary was the second panelist to speak. He began by explaining how he became the focus of media attention in 2003. In 2003, Judge Neary dissolved a civil union between two women, years before same sex marriage was legal in Iowa. He told the audience that he followed the law, using comity [the informal and voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another] and the Full Faith and Credit Clause of the United States Constitution. However, a movement formed in northwestern Iowa to have him ousted. A campaign to have a judge removed from the bench was almost unheard of until many residents of northwestern Iowa became upset with Judge Neary’s decision. He was fortunate enough to make it through the effort to have him removed, but he did learn through this experience that judges need to be accessible. The judicial branch needs to “put a picture of a face on the ballot”, Judge Neary said. “We should be pro-active.”
Bill Brown, a partner in the Des Moines law firm of BrownWinick, was the third panelist to speak. Bill warned the audience that he would be coming from a different perspective from the others. This is the point where I thought the discussion would get back to the title of the program. Not once did Bill mention the media and the courts. He began with a historical footnote as well. Bill taught us (me, at least) that Teddy Roosevelt wanted to get rid of the Court because it said that the Worker Safety Act was unconstitutional based upon the reading of the Constitution’s Commerce Clause. He explained the basis of the Varnum case, which was the Racing Ass’n of Cent. Iowa v. Fitzgerald [RACI] case that came years before (February 3, 2004). He correctly claimed that Lambda Legal, a national legal organization that supports the rights of lesbians and gay men, scouted around the county for a case like RACI to use as a foundation to bring about the result Iowa has seen from Varnum. My question is: why shouldn’t they? It was smart strategy. He complained that the Roe v. Wade decision was based upon a “penumbra” because no one Amendment to the U.S. Constitution gave us the right to privacy. He saw problems with the Miranda v. Arizona decision of 1966. And he came to the conclusion that the problem is lawyers and the lack of political balance.
Brown carried on the criticism of the Varnum decision and the process in which Supreme Court justices are selected. He brought to the discussion a sour grapes attitude; but a sour grapes attitude unlike the two speakers before him.
Brown’s array of reasons why there needs to be different methods of selecting justices made me go back to why people on both sides of this issue should remember to be careful what you ask for. There is no better example than the Twenty-second Amendment to the U.S. Constitution, which limits a President to two terms of office. Republicans wanted this Amendment because they didn’t want to have to go through another long era of not being able to defeat a strong Democratic candidate like Franklin D. Roosevelt. However, when Reagan came along, various Republicans wanted a repeal of the Twenty-second Amendment. Of course, that was before anyone knew he had Alzheimer’s.
Professor Caufield did have a different approach. She had better sound bites, for one thing. Besides her position as a professor at Drake, Caufield is also a research fellow with the American Judicature Society’s Elmo B. Hunter Citizens Center for Judicial Selection. She began by saying that “Varnum serves as a very convenient signpost.” It brings about keywords that have been thrown around for the past decade; words like “judicial activism” and “irresponsible courts”. The irresponsibility phrase is based on some people’s questioning of the Court’s inability or unwillingness to throw the legislation back to the Iowa Legislature to fix it. “Judicial activism” is a phrase that insinuates the Court “makes legislation.” Those are catchy little phrases that undermine the real process. “The Court’s job is to review,” Caufield stated. When it looks like they have done something other than that the “public is not interested in a lecture on constitutional law.” “We don’t have a bumper sticker message”, she noted; as she pointed out that critics of the courts have the upper hand. Thirty-three states have the merit selection process that Iowa has, often called the Missouri Plan.
I came away from the discussion knowing that there exists another example of what could happen if nothing is done, or if something drastic is done. Iowa could manage to have a clone of Judge Roy Moore. To refresh your memory, Judge Roy Moore was the chief justice of the Alabama Supreme Court, but was removed from the bench in 2003 “for defying a federal order to remove his controversial 5,300-pound monument of the Ten Commandments inside the state’s judicial building.”
There is no doubt in my mind that if nothing is done, the tables will turn in time to produce a Supreme Court that will not use precedent (stare decisis) to rule on a point of law. On the other hand, if a big change is made in the merit selection process, or it’s abandoned, it will be a matter of time before Iowa gets a panel of justices that will not use stare decisis to rule on a point of law.
Really, it’s not broken. Let’s not fix it. In any case (no pun intended), I’m still waiting to hear about “Media Coverage of the Courts.”