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Heated back-and-forth marks judicial retention forum
WEST DES MOINES — The Iowa Supreme Court’s 2009 decision that legalized same-sex marriage could open the door for legalized polygamy and incest, former Republican gubernatorial candidate and Iowa for Freedom chairman Bob Vander Plaats said Tuesday night at a forum hosted by The Iowa Independent and Simpson College.
Vander Plaats and three other panelists spoke at length on the “slippery-slope” issue and ramifications the retention vote will have on the Iowa judiciary. Three state Supreme Court justices will be on the ballot Nov. 2, with Vander Plaats leading the campaign to oust them.
Vander Plaats and former Iowa Supreme Court associate justice Mark McCormick dominated the 90-minute discussion, trading arguments over the retention election and the issue of same-sex marriage. Tempers flared at times, stopping just short of a shouting match.
Invoking the terms “liberty” and “tyranny” while discussing what he saw as an over-stretch of judicial power, Vander Plaats attempted to harness his roots as a former educator and lecture the two former justices sitting on the panel about how the third branch of government is suppose to operate. He said the Iowa Constitution is written at an eighth grade reading level and says it should be easy enough for the justices to understand.
“Sometimes we get so confused by our own intellect that we no longer understand what the Constitution really says,” Vander Plaats said. He later added: “They should not be independent to make law, to execute law or to amend the constitution — that is not their role, and God help us if it ever becomes their role.”
McCormick shot back, saying Vander Plaats’ campaign was attempting to politicize Iowa’s judicial branch, citing Alexander Hamilton’s Federalist 78 which calls for an independent judiciary. He said the Iowa Supreme Court was appropriate and diligent in the manner in which they ruled in Varnum v. Brien, calling the decision “courageous.”
“The appropriate way, if one is unhappy about a constitutional decision made by the court, is not to try to oust the judges who made the decision but to try to change the constitution or try to persuade a subsequent court to overrule the decision that the Court made,” he said. “But the campaign here is an effort to intimidate judges, not only in Iowa but everywhere, not to carry out their constitutional responsibilities but to defer to the mob or what is perceived to be a majority view and not to make unpopular decisions.”
In response to Vander Plaats’ assertion that the Iowa Supreme Court was “activist” in the Varnum decision, McCormick said, “An activist court is a court that makes the decision you don’t agree with.” Vander Plaats quickly proclaimed, “Whoa, whoa, whoa!”
McCormick and former Iowa Supreme Court justice Robert Allbee asked Vander Plaats several times throughout the forum what he wanted to gain from voting the justices out, citing the fact that the new justices will be appointed through the same process that Vander Plaats does not approve of. Vander Plaats said he is aiming to send a message. This position sparked an intense back-and-forth that left the audience and panel members charged.
Vander Plaats: “Why is it that you have such a problem with letting the people have their voice be heard on Nov. 2?”
McCormick: “I have absolutely no problem with our retention system.”
Vander Plaats: ”You called it the mob.”
McCormick: ”What I have a problem with is special interest organizing a well-funded campaign which is misguided in its purpose, which threatens to undermine our system of selection and retention of judges — that’s my problem.”
Vander Plaats: ”It’s not misguided.”
McCormick: ”It is attacking, personally, three very competent and distinguished individuals who ought to be judged on the competancy of their performance.”
Allbee: “It’s intimidation.”
Vander Plaats: ”OK, well I’ll take that attack as personal because what it is is when I ran for governor, there was no interest in regards to out-of-state dollars — those type thing.”
At times the forum’s heated discussion brought about some personal attacks, such as when the panel was asked if the retention vote was a referendum on gay marriage.
“It may just be another referendum on Mr. Vander Plaats. He’s had three already,” Allbee said, referencing Vander Plaats’ three gubernatorial attempts. The line drew grumbles from some in attendance.
The fourth panelist, Davenport attorney and author Nathan Tucker, sided with Vander Plaats position but spoke exclusively on the process of selecting judges and how he said it results in more Democrats serving on the judiciary than Republicans. McCormick said in all the years he sat on the judicial nominating committees, he never saw political party affiliations affect their work. In fact, some of the justices that are up for retention votes were appointed during Republican Gov. Terry Branstad’s time in office.
At two times during the debate, Vander Plaats seemed to be at a loss of words and side-stepped questions from his fellow panelists. When the issue of Iowa for Freedom’s funding came up, he refused to answer McCormick’s question of where his organization’s funds come from. The Mississippi-based American Family Association contributes the overwhelming majority of funding for Iowa for Freedom, and New Jersey-based National Organization for Marriage has spent hundreds of thousands of dollars to pay for TV ads attacking the judges.
The second moment was when the panelists discussed the equal protection clause in both the Iowa and U.S. constitutions. For much of the debate, Vander Plaats dismissed the clause, using examples of property or gun rights to object to the theory. However, McCormick brought up Brown v. Board of Education as a paramount case that the clause was used. Contrary to Vander Plaats position that courts should not use the clause, he said the use of the equal protection clause is appropriate for civil rights cases including Varnum. Allbee added the social criticism of the Brown case sounds eerily similar to that which is used against the Varnum ruling.
The forum’s audience got involved at times, interrupting speakers with, “Amen” or, “not true.” Overall, the crowd seemed divided on the issue at hand — frustration seen from both sides.
Connie Ryan Terrell, the executive director of the Interfaith Alliance of Iowa, pointed to McCormick specifically as right to defend the current process that she says promotes an independent judiciary free from outside influence.
“I was very pleased to have both judges here standing up for the courts and particularly standing up for our constitution,” she said. “I think that Mr. Vander Plaats has a lot to learn from them and the nature of our constitution and really the interpretation that the court took.”
On the other hand, Newton resident Laurie Nelson said although his positions seemed extreme at points she agreed with Vander Plaats overall assertions about the Iowa judicial system.
“I’m not overly informed, but from what I gather they did legislate from the bench and I don’t think that’s fair,” she said. “Something like this, the people need to vote on. It’s going to open the door to other things we don’t want.”