Cheap Seats

by Dahlia Lithwick

Slate
September 13, 2010

Sandra Day O'Connor has done an almost frighteningly good job of keeping herself outside the political fray since she retired from the Supreme Court in 2006. Even when afforded an opportunity to pick sides she tends to avoid doing so, unless it's the high road. Of the two causes she has championed, one—returning civics education to the public schools—is the kind of inoffensive issue that can bring together hippies and Tea Partiers. It's the second—doing away with judicial elections—that shows how hard it is to truly stay above politics when you're arguing for depoliticizing the judiciary. Last week O'Connor went to Iowa to give a speech about the benefits of appointing judges based on merit. And suddenly everyone thinks she's picked sides on gay marriage.

Voters in 21 states elect their Supreme Court judges directly, but in 1962, Iowa voters amended their constitution to create a "merit selection" system whereby an appointed panel submits the names of potential judges to the governor, who then appoints justices from that list. After a period of some years, voters can oust these justices in a retention election. In Iowa only four judges have failed to win their retention elections, never as a result of a vote in a case.

That's all about to change, though. In April 2009, the Iowa Supreme Court issued a 7-0 decision in Varnum v. Brien, finding that the state statute limiting marriage to a man and a woman violated the equal protection clause of the Iowa constitution. Bob Vander Plaats, a well-known social conservative in Iowa, ran a failed campaign for the Republican gubernatorial primary in June, campaigning largely against the decision. Now Vander Plaats has turned his attention to the retention elections against three of the state supreme court justices, the only three who will be on the ballot this fall. Marsha Ternus, the chief justice of the Iowa Supreme Court, is one of the three. In case it matters to you, she was appointed by a Republican governor. But never mind: Last month Vander Plaats founded Iowa for Freedom, seeking to oust Ternus and two other judges, David Baker and Michael Streit, in retaliation for their votes to allow gay marriage in Iowa. If the three are booted from the court, the governor—now a Democrat, by the way, but as I said, never mind—will simply replace them. Gay marriage will still be legal.

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