Process begins now to replace 3 justices

What happens now that three justices have been booted off the state's Supreme Court?

First of all, the three - Chief Justice Marsha Ternus and Justices Michael Streit and David Baker, who lives in Cedar Rapids - will continue working through the end of the year.

In an election that captured national headlines, Iowa voters on Tuesday voted against their retention, 54 to 55 percent opposed, depending on the justice, to 46 percent in favor of retention.

Voters in between nine and 11 counties of Iowa's 99 counties supported the justices in their bid for retention, often by narrow margins. More that 80 percent of voters were opposed to retention in Sioux County in northwest Iowa.

The effort, led by former gubernatorial hopeful Bob Vander Plaats and fueled by more than a half-million out-of-state dollars, targeted the three justices for removal after the court in April unanimously ruled Iowa's Defense of Marriage Act unconstitutional. The ruling paved the way for same-sax marraiges in the state.

Even after the departure of the three justices, the seven-member court will have a quorom of four, which means it can continue to have hearings and make decisions. But its work likely will slow down, said David Boyd, the state court administrator.

Boyd said the state's Judicial Nominating Commission could be convened after Tuesday's vote totals are certified on Nov. 29.

The commission has 60 days to select candidates for the justice openings and send names to the governor. The governor then has 30 days to make a selection but doesn't have to take that much time. The selection process could take a few months or less.

Justice Mark Cady, chairman of nominating commission, said last month that multiple vacancies could be handled at one time, as opposed to putting candidates through the vetting process three separate times. The commission could select several names to send to the governor.

It's possible, observers have said, that Gov. Chet Culver, who lost his bid for re-election, could make the appointments before leaving office.

But Gov.-elect Terry Branstad on Tuesday cautioned Culver against doing that, saying it would be inappropriate to rush the appointments,

“I respect the fact that a lot of people were very upset about what the court did and I think they spoke out loudly,” Branstad said in a statement. “Iowans are very fair and reasonable people and they don't take these decisions lightly. But I think they felt that it was important to send a clear message to the court.

“I think it would be inappropriate to do anything that is hasty or is political in this situation. I think there needs to be some time to think this through very carefully,” he added. “I think it would be inappropriate to have a governor that was just rejected by the voters try to rush through appointments to the court.”

Culver said Wednesday that he, too, is reviewing the matter carefully and looking at past practices used by both Democratic and Republican administrations when the state has had multiple judicial vacancies.

The first thing Vander Plaats said he wanted to do was celebrate the election outcome “and get some rest.”

“We're very, very proud of the people of Iowa,” he said Wednesday. “What we saw last night was that the people stood up en masse and gave a resounding victory for freedom by voting three activist judges off the Supreme Court bench.”

The outcome, he said, will force judges to be “more constitutional and less activist.”

Former Iowa Supreme Court Justice Mark McCormick believes the ouster of three justics will have a negative impact on the court's work but won't deter those who aspire to the bench.

“It won't have a chilling effect because it's unlikely to occur again,” said McCormick, now a Des Moines attorney. “Judges will abide by their oath and will be willing to risk making an unpopular decision.”

Todd Pettys, a University of Iowa law professor, said the “heavily politicized vote is inconsistent with the core judicial values,” and he thinks it will deter some applicants if they have to mount a campaign when they stand for retention.

Pettys said the justices went to the public in the past weeks to explain the Varnum v. Brien decision that found the state's ban on same-sex marriage unconstitutional because it violated the equal rights protection section of the Iowa Constitution. But explaining the judicial methods wasn't enough to calm those who oppose same-sex marriage.

McCormick said those supporting the justices, like Fair Courts for Us, couldn't compete with Vander Plaats and the others connected with Iowa for Freedom.

“It was too little, too late,” McCormick said. “Eight weeks of TV attack ads against the three, accusing them of being activist judges, whatever that means, alleging they were misbehaving, will affect the courts. The only bright spot is that voters distinguished between the campaign against the three justices and the other 68 judges up for retention.”

Organizations outside Iowa - including the National Organization for Marriage, the American Families Association, the Family Research Council, the Campaign for Working Families, and Citizens United - spent nearly $800,000 in the campaign to oust the justices, according to Justice at Stake Campaign, a Washington, D.C., watchdog group.

Fair Courts for Us reported spending nearly $400,000 in support of the justices, raising the campaign's total cost to $1.2 million. More than half, about $700,000, came from out of state, Justice at Stake reported.