Should Iowa Ditch Judicial Retention Elections?

Jul 14, 2016

Judges and justices often make unpopular decisions, and these decisions may come back to haunt them come election season.

For Supreme Court justices in Iowa, that’s every eight years. And this November, Chief Justice Mark Cady, along with Justices Daryl Hecht and Brent Appel will be on the ballot.

Voters will not be asked to choose between the current justices and a challenger; rather with a retention election, voters are simply asked if each justice should keep his or her job.

I think that it's problematic for these judges when they are making these decisions to think not just, "Want is legally the right conclusion?" But in the back of their mind to think, "Will this show up in a campaign mailer?" --Jessica Levinson, Loyola Law School

But, many dislike Iowa’s judicial retention system.

“I think that it’s problematic for these judges when they are making these decisions to think not just, ‘What is legally the right conclusion?’ But in the back of their mind to think, ‘Will this show up in a campaign mailer?’” says Jessica Levinson of Loyola Law School in Los Angeles.

Since the 1960s, Iowa has made its judicial appointments through a merit-based system.

The governor selects a justice from a pool of candidates chosen by a judicial nominating commission. Then to ensure accountability, the public votes on whether an appointee should keep their job.

This system was designed to make the judiciary less political. But successful candidates often need a lot of campaign money.

“Think of who is likely to give a judge money,” says Levinson. “They’re the same people who are likely to give legislators money. It’s the people who think they’ll have some business, usually in front of the judge.”

Now just because a campaign donation is offered, that doesn’t mean a justice has to accept it.

For example, back in 2010, former Chief Justice Marsha Ternus, as well as former Justices Michael Streit and David Baker didn’t raise funds for their retention elections. That’s even though they were under attack, due a controversial unanimous ruling that legalized same-sex marriage in the state. 

“Frankly, had we chosen to campaign and form campaign committees, we would have tacitly admitted to be what we claimed not to be, which is politicians,” says Baker. “We fully understood that this course may not have been the smartest move politically, but we felt it was our responsibility to the position.”

All three justices lost their elections, but Baker stands by his choice to not campaign. He also believes that retention elections are necessary in a merit-based judicial appointment system, though he wishes groups like the Iowa State Bar Association had done more leading up to the election to educate the public about the judiciary’s role.

But not everyone agrees the justices were correct to stay above the fray.

“Those justices deserved to lose their jobs,” says Chris Bonneau, a political scientist at the University of Pittsburgh. “Not because of the decision they made [to legalize same-sex marriage.] But because they were arrogant enough to say we’re not going to campaign and make our case to the voters.”

Bonneau also disagrees that Iowa’s merit-based system insulates the state’s judiciary from politics. He says elections make the politics of judicial appointments more transparent, while with an appointment system all the politicking goes on behind closed doors.

“This notion that there’s a way to put people on the court that does not involve politics, or does not involve any kind of interest group lobbying, or anything like that is just not true,” says Bonneau.

Those justices deserved to lose their jobs...because they were arrogant enough to say we're not going to campaign and make our case to the voters. --Chris Bonneau, University of Pittsburgh.

  

Though Bonneau favors judicial elections, he doesn’t like the retention system. Instead, he advocates for competitive races with several candidates.

“[With] retention elections, you’re running against nobody. You have no idea if you’ll have an opponent or not. And three weeks before the election, someone can drop a $5 million negative ad-buy against you. And if you haven’t been raising a lot of money, and been out there visible, you’re caught flat-footed. And how are you going to compete with that?”

Stephen Ware of the University of Kansas School of Law doesn’t support judicial elections, believing that job security allows a jurist freedom to interpret the law without the specter of an election prodding them to tip the scales. However, he agrees with Bonneau that Iowa’s current system lacks transparency.

So what’s a better solution? Ware posits the “least bad” way to appoint a judge or justice is the federal method where the executive branch picks a nominee, and then the Senate confirms. However, Ware is in favor of doing away with lifetime tenure.

"Life spans were lower 220 years ago than they are now,” says Ware. “The reasonable person now might want to have a mandatory retirement age, 75 years old seems a pretty common number.”

Right now Iowa’s merit-based judicial nomination system appears to be here to stay. So the question is how vulnerable is the judiciary to outside forces?

Opponents of same-sex marriage used Iowa’s 2010 retention election as a vehicle to oppose what eventually became legal in all 50 states.

Presently, the groups that backed removing the justices six years ago aren’t showing any apparent interest in the 2016 ballot. However, national political organizations are paying more attention to state judicial elections and are on the lookout for issues that may galvanize the public to toss their current judiciary.  

Iowa’s high court is aware of this threat, and in response has taken steps to become more accessible to Iowans.

“The Supreme Court had done considerable outreach and they now go around the state hearing cases. So they can have greater public involvement and people can see how the court works. I think that’s been a tremendous benefit,” says Guy Cook, who served as president of the Iowa State Bar Association from 2013-2014.

Cook adds the bar association has also taken steps to better educate to the public.

But regardless of what you think about judicial elections, nearly everyone agrees on one thing. It’s impossible to insulate the judiciary from politics.

This story is part of IPR's summer series, "Beyond Iowa Nice", which looks at a number of issues on which Iowans don't agree.  Hear more stories Thursdays in July on Morning Edition and All Things Considered, and hear discussions on these topics Thursdays this month on Talk of Iowa and River to River.