Monday, November 8, 2010

The Campaign That Iowa's Justices Might Have Won

      Jeffrey Neary drew the ire of social conservatives in 2003 when, without realizing, the Sioux City, Iowa, judge signed a divorce decree for a lesbian couple who had moved to the state after having formed a civil union in Vermont. Iowa did not recognize same-sex marriages at the time, so Neary revised the court document to show that he had dissolved the couple’s civil union.
      Anti-gay activists saw Neary’s action as judicial activism and mounted a campaign to defeat him in the next election in 2004. Neary fought back, as reporter Greg Schulte of the Des Moines Register recalled in a story this year. Neary borrowed money and recruited two attorneys, one Republican and one Democrat, to run his campaign in the retention election, where voters cast “yes” or “no” ballots on keeping a judge in office.
      Neary survived, with 59 percent of the vote. But, as he told Schulte during what proved to be a successful effort this year to defeat three of the state’s supreme court justices, the experience had an effect. For two years afterward, Neary said, he found himself looking over his shoulder when making decisions. “You did ask yourself,” the judge recalled. “Who’s going to care about this decision?”
      With much more at stake this year, Chief Justice Marsha Ternus and two of her colleagues, David Baker and Michael Streit, all but sat on the sidelines as anti-gay groups targeted them for defeat because of the Iowa court’s 2009 decision recognizing same-sex marriages in the state. The three justices organized no campaign for themselves and turned aside requests for interviews. Only in the final weeks did Ternus “go public” in semi-earnest with civic club-type appearances touting the importance of judicial independence. But the speeches were no match for the no-holds-barred campaign against the justices.
      Operating under the name Iowa for Freedom, the campaign against the justices spent upwards of $800,000, about $700,000 of the amount from out of state, according to Adam Skaggs, a lawyer with the Brennan Center for Social Justice at New York University Law School who followed the campaign. Financing came from such anti-gay national groups as the American Family Association, Family Research Council and National Organization for Marriage.
      Without direct help from the justices, an in-state group that called itself Fair Courts for US raised about $400,000 to counter the campaign, according to Skaggs. But it bought no television or newspaper advertisements even as the anti-gay group was running TV and newspaper ads and organizing a highly visible bus tour in Iowa’s rural areas.
      The justices stuck to the no-campaign stance even as polls in September and October showed that one or more of them were in trouble. The Register’s poll in October showed that 44 percent of respondents were planning to vote against at least one of the justices. Only 37 percent said they were in favor of retaining all three. By contrast, polls a year earlier had shown Iowans were essentially split down the middle on the gay marriage issue itself.
      In the final days before the Nov. 2 voting, thousands of Iowans received robocalls at their homes urging a no vote on all three. Defeating the justices, the recorded messages said, would “send a clear message that we are taking back control of our government from political activist judges.”
      The campaign worked. All three justices were defeated on Nov. 2 by roughly 55-45 margins. Leaders of the campaign claimed a victory against a court that had overstepped its bounds. The state’s gay rights leaders acknowledged the setback while noting that the court’s pro-gay marriage ruling still stands.
      Iowa is one of 16 states that use judicial retention elections, the so-called Missouri plan named for the first state to adopt the system. No appellate justices had been defeated since Iowa adopted the system in 1962, but over the years Iowans had ousted four trial-level judges, all because of character or temperament issues.
      As Neary’s experience in 2004 showed, a judge need not tie his hands behind his back when an ouster effort forms. Indeed, as Skaggs notes, even as the Iowa justices were going down to defeat, the chief justice in neighboring Illinois was surviving a comparable campaign because of his vote to strike down a law limiting damages in medical malpractice cases.
      To counter the business-backed campaign against him, Chief Justice Thomas Kilbride raised $2.5 million to defend his seat. He won, with more than 60 percent of the vote. “The lesson for judges in the country,” Skaggs says, “is if we want to keep our jobs, we’re going to have to campaign like any other politicians, particularly in retention elections.”
      That lesson for judges will be an unwelcome one for judicial independence advocates such as retired Supreme Court Justice Sandra Day O’Connor, who has been warning of the dangers of judicial elections. But only nine states dispense with judicial elections altogether. For better or worse, judges in the rest of the country serve in an electoral system — partisan or nonpartisan races or retention elections.
      Could the Iowa justices have won? “Probably,” says Skaggs. “They didn’t fall short by that much of a margin.” But they chose the high road in the campaign — and paid for their high-mindedness with their jobs. The cost to judicial independence could be even greater if judges in future campaigns take the same approach.

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