By Mark McCormick
The campaign led by unsuccessful gubernatorial candidate Bob Vander Plaats against retention of three Iowa Supreme Court justices whose names are on the November ballot is political retribution against them for their participation in a single, controversial but unanimous decision of the Court.
Vander Plaats, whose effort is funded in part by out-of-state special interests, is seeking to upset the checks and balances among the three branches of government provided in the Iowa Constitution.
The state constitution gives the Iowa Supreme Court the responsibility and authority to determine whether a statute is inconsistent with a constitutional provision. Our founders made the constitution the supreme law of the state and declared that any inconsistent law is void.
Vander Plaats’ allegation that the Iowa Supreme Court acted beyond its jurisdiction in its April 2009 decision is untrue. The General Assembly remains free to enact laws that do not infringe upon the rights upheld in the marriage case.
Vander Plaats accuses the court of having infringed executive power by making its decision applicable in every county. He seems not to recognize that the constitution applies to the whole state.
Interpretation of the laws is the role of the courts. As explained by this nation’s founders in the Federalist Papers, a constitution is a fundamental law.
The duty of courts to determine the constitutionality of statutes does not mean the judicial power is superior to legislative power. Rather, when the will of the legislature expressed in its statutes stands in opposition to the will of the
people as expressed in the constitution, the courts must prefer the constitution over the statute.
Vander Plaats accuses the three judges of being “activist.” The term “activist” is often applied to judges who make controversial decisions, but the nature of judging requires courts to make decisions in controversial cases.
Nothing in the lengthy opinion of the Court in the marriage case supports the allegation that the judges injected personal ideological beliefs into the decision.
We depend on our courts to protect individual rights. Those rights are vulnerable when they are made to depend only on the will of the majority or of those who happen to be in power at a particular time. This is why the U.S. Constitution gives lifetime tenure to federal judges.
It is also why Iowans adopted our present system of judicial selection and retention by amendment to the Iowa Constitution in 1962. Judicial independence to make even unpopular decisions is vital to our system of government.
Our system of judicial selection and retention presupposes that judicial retention decisions will be based on the qualifications of the judge rather than the popularity of the judge’s decisions.
Chief Justice Marsha Ternus, and Justices David Baker and Michael Streit are experienced and well qualified jurists who have served Iowa honorably and well during their tenure on the bench. Their personal qualifications are outstanding. We will be the losers if they are not retained in office.
It is much more reasonable to base retention votes on the qualifications of the judge rather than on disagreement with a single decision out of many that the judge has made.
Mark McCormick of Des Moines is a former Iowa Supreme Court justice who also was a Democratic candidate for governor in 1998. Comments: MMcCormick@belinmccormick.com