Gay Marriage and Judicial Retention: The Most Important Vote

This November, Iowans will once again be tasked with voting whether or not to retain a slate of judges on the bench. Assistant Chief Justice of the Iowa Supreme Court David Wiggins is on the ballot, and his retention is being targeted by Bob Vander Plaats and “Americans for Freedom” for his role in the 7-0 decision delivered by the Iowa court in 2009 which struck the Iowa Defense of Marriage Act as unconstitutional. That decision, Varnum v. Brien, put Iowa at the forefront of civil rights in the nation by allowing same-sex couples to legally marry.

In the past, Iowa retention votes have been largely pro-forma affairs. Many Iowans do not even turn over their ballots to cast retention votes, with the result that judges usually win. That changed in 2010, when Vander Plaats, after losing the Iowa GOP gubernatorial primary to Terry Branstad, started “Iowa Family Leader” to push for the expulsion of three Supreme Court justices from the bench. Vander Plaats succeeded: in a contest where 100,000 fewer votes were
cast than for the governor’s race, all three justices lost. Vander Plaats wants to make David Wiggins #4.

Iowa has used the Missouri system since 1962 to seat judges. Judicial applicants are screened by an independent judicial selection committee, which forwards its
recommendations to the governor, who then selects his appointments. The system is nonpartisan: the governor can only select from the nominees the commission forwards, unlike the federal system, where the president selects nominees. Unlike many states, Iowa judges do not campaign in competitive elections for their seats. The system has produced an independent, nonpolitical judiciary in this state, which Vander Plaats and his sponsors threaten.

Vander Plaats has been very deceptive, even mendacious, in his arguments against Wiggins. As you can see in the judicial review link below, Wiggins received 63.3% “yes” votes for retention from Iowa attorneys, the lowest percentage of the four justices up for election. Vander Plaats has been deceptive in citing that number, trying to present it as a test score on a scale of 100. The truth is simple: some 320 out of 506 Iowa attorneys who were qualified to respond to the Iowa Bar survey said Wiggins deserves retention. If Vander Plaats had received 63.3% of the vote in the GOP primary, it would have been him, not Branstad, who would have been the Republican gubernatorial candidate in 2010. The Iowan who held up the “D-“ sign at the Vander Plaats bus stop in Cedar Rapids has been bamboozled and is misinformed.

The real issue is same-sex marriage. National GOP figures Rick Santorum and Louisiana governor Bobby Jindal have joined Vander Plaats. Iowa GOP chairman A.J. Striker has also called for Wiggins’ ouster. The Iowa GOP has been joined by the national GOP in an attempt to end the independence of Iowa’s judiciary, and to make appellate courts and the Iowa Supreme Court subordinate to that party’s platforms. Cedar Rapids Gazette columnist Todd Dorman wrote about the response a long-time Republican attorney, William McCartan of Cedar Rapids, received when he wrote the state GOP Central Committee to protest Striker’s call for Wiggins’ ouster. One committee member, Jamie Johnson of Stratford, insisted to McCartan that the court, in striking down Iowa’s ban on same-sex marriages, assumed power “that no human government can possess.”

Johnson continued: “Their lawlessness was not a trespass against the legislative branch, nor against the executive branch, nor even against the people of Iowa. Their trespass was against God, who created the institution of marriage and defined it as the union of one man and one woman.”

More amazing was the response from Mark Doland, an Oskaloosa pastor. He defended Spiker’s action because the Varnum v. Brien ruling deviates from the
Republican Party platform and bylaws, along with the Iowa and U.S. constitutions, the Declaration of Independence and the Bible.

“It would not be ‘fair’ to allow Justice Wiggins to remain on the bench after his three colleagues were removed for the same infraction,” Doland wrote.

Justice Wiggins has chosen to not campaign for retention: he has said doing so would be a departure from Iowa judicial tradition of being nonpolitical.  Because Wiggins has been targeted, it is essential that we vote to retain him on the bench.  A solid majority of attorneys who have practiced before him have recommended his retention, as has the Iowa Bar Association.  What is more important is defending civil rights.  Even though Vander Plaats and his acolytes have accused Wiggins’ supporters of being “emotional,” they have yet to make any reasoned argument, based in secular law, to defend their attempt to intimidate the judiciary.  The Varnum v. Brien decision is 68 pages of closely-reasoned argument, steeped in US Supreme Court precedent, defending the ideal that all men and women are entitled to equal protection under the law, especially members of persecuted minority groups like gays and lesbians.

Be certain to turn your ballot over, and vote to retain Justice Wiggins.  It’s the only right thing to do.

Link to Cedar Rapids Gazette story about Vander Plaats: be sure to read about Terry Branstad’s niece, Christine, who defends Wiggins and questions Vander Plaats’ use of our-of-state money: http://thegazette.com/2012/09/25/dueling-bus-tours-in-the-judicial-retention-battle-stop-in-cedar-rapids/

Todd Dorman’s column about why William McCartan is no longer a Republican: http://thegazette.com/2012/08/12/waiting-for-responsible-gop-leaders-to-say-enough/

Iowa Bar Association’s rating for the four Supreme Court justices, including Wiggins, who are up for retention: http://iowabar.org/associations/4664/files/2012%20Judicial%20Review%20SC.pdf