By Donald P. Racheter
As someone who for many years taught a college class entitled Judicial Politics, I would like to try to correct those who have been emoting of late about how the courts and judges are supposedly different from executives and legislators — that they are somehow “non-political.” Any institution composed of humans, including our churches, educational institutions, bowling leagues, newspapers, etc., is political, and the periodic crusades to “take the politics out of politics” are doomed to failure.
Political reform efforts with this goal are usually efforts to make it easier to divert power and control from ordinary folks to elites such as lawyers, professors and media professionals.
The fact that any judge can “create law” equal in force to that enacted by a majority vote in both the Iowa Senate and House and signed by the governor makes it imperative that all concerned carefully screen who is put on the bench and who is retained there.
The Missouri Plan, which we use here in Iowa, is supposed to ensure popular control of judges, and the fact they run for retention unopposed is supposed to allow them to run on their record, and for the people to render a verdict on that record with their ballots.
It is rare for a judge running for retention to lose, but when it happened to Chief Justice Rose Bird and two of her liberal colleagues in California because of their repeated opposition to capital punishment, and when it happened to Chief Justice Marsha Ternus and two of her colleagues here in Iowa in 2010 over the “gay-marriage” issue, it means the system is working as intended.
While average citizens can understandably be ignorant of the political nature of judge selection and retention, members of the “mainstream media” who specialize in reporting on politics and public policy are either being disingenuous or mendacious when they allege that it is “wrong” for citizens to vote against a judge they dislike in a retention election. Most political scientists (who are by various estimates almost 95 percent liberal Democrats), and especially those who specialize in the courts, support my assertions above.
Others who claim that voters should only vote against judges who are senile, abusive or caught taking bribes are similarly in error and their motives for such statements in question. Iowa Code Section 602.2102 says: The seven-member Judicial Qualifications Commission is the government body responsible for evaluating and investigating allegations of misconduct by Iowa judges, magistrates and court employees. The Commission can recommend to the Iowa Supreme Court the retirement, discipline or removal of a judicial officer or the discipline or removal of an employee of the Iowa judicial branch.
As two of my judicial politics colleagues so aptly summarized, “A state judge’s decisions, and not merely his or her personal and professional behavior, may be considered by the public a legitimate basis for voting the jurist out of office.” So those Iowans who disagree with the Varnum v. Brien decision and choose to vote “no” on Justice David Wiggins this fall, if challenged, should point out that they are fulfilling the “good government reform” role designated for them when the Missouri Plan was adopted in our state constitution.
Donald P. Racheter is president of the Public Interest Institute, Mount Pleasant. Comments: IARacheter@