This Week's Q Cartoon

Last year, the Iowa Supreme Court unanimously ruled that there was no basis in the state constitution for Iowa to discriminate against same-sex couples by forbidding them to marry (Varnum v. Brien). This November, the three members of the court who were up for voter approval were all rejected by the voters, prompted by an intensive campaign by NOM — No On Marriage, or the National Organization vs. Marriage, or Nullify 'Omos' Marriages.

In Iowa, Supreme Court justices are appointed by the governor from a list submitted to him by a 15-member Judicial Nominating Commission. Each judge has to run in a "retention election" every eight years, getting an up or down vote; if a justice loses a vote, their term ends that December 31; I presume that the state Judicial Nominating Commission presents the governor a list of new nominees — probably after the new term begins, considering that the current governor is also a lame duck. From what I read, this is the first time since this system was begun in 1962 that any justice was not retained.

This system was enacted because of concerns that judicial elections were becoming overly politicized — something voters in my state of Wisconsin have certainly seen in the last several election cycles, in which ethically challenged and poorly qualified candidates (yes, I mean Annette Ziegler and Michael Gableman) have won election thanks to incessant, half-true or completely false attack ads funded by shadowy business interests and right-wing activist groups.

Retired U.S. Supreme Court Justice Sandra Day O'Connor spoke out in September in favor of Iowa's system for selecting judges:

"The health of the nation is affected by the system we use to pick judges. As Iowa goes, so goes the nation. I wish the nation would hurry up and go your direction."

Clearly, Iowa's system is just as susceptible to a concerted attack on judicial independence as other states' are. The opposition to a judge doesn't even have to put up a Ziegler or a Gableman in Iowa (although at least it is less likely that a Ziegler or a Gableman would end up on the court as a result).

As undemocratic as this may sound, judges do not represent The People, they represent The Law. That's why our founding fathers did not provide for any election of federal judges. There is an impeachment process in the event of actual malfeasance; but if voters don't like the law, their remedy is to have their representatives change the law, not to change the umpires.