Chief Justice: Iowa has best judicial selection process in nation

Taking direct aim at critics that have emerged in the wake of a 2009 decision that legalized same-sex marriage in the state, Iowa Supreme Court Chief Justice Mark Cady spoke extensively during the 2011 State of the Judiciary address about the state’s judicial nominating process and the decision that has wrought such contention.

“Iowa has the best method in the nation for selecting its justices,” Cady said Wednesday morning during a joint session of the Iowa General Assembly. “This method, known as merit selection, must be maintained today to help us move forward toward a better tomorrow.”

The selection of judges in Iowa is one of many aspects of the judiciary that has come under increased scrutiny since the unanimous Varnum decision, which provided for marriage equality. A nationally known conservative legal firm, led by out-of-state Republican National Committeeman James Bopp, Jr., has filed a lawsuit on behalf of five Iowans that requests attorneys elected to serve on the State Judicial Nominating Commission be barred from helping to winnow a field of 61 applicants hoping to replace three Supreme Court justices that were ousted during a November retention vote. The process has been in place in the state since voters approved it in 1962.

Cady, who was elevate to the high court by Republican Gov.-elect Terry Branstad, said he and the justices serving on the Iowa Supreme Court knew that their decision in the Varnum case would “receive great attention and be subject to much scrutiny,” and that they understood how state residents could “reach differing opinions” in relation to the question before the court. He also stated unequivocally that the justices worked within the legal confines of the Constitution in making their ruling.

“I know not how this debate will end, but I do know our Constitution will continue to show the way, as has been borne out by our history,” Cady said, who offered a detailed view of the roles of the three branches of government, and particularly the role of the judicial branch.

At least three members of the Iowa House Republican caucus have begun drafting a bill intended to impeach the four justices that did not stand for retention in November — Cady, Brent Appel, Daryl Hecht and David Wiggins. Bob Vander Plaats, who ran three unsuccessful campaigns for the GOP gubernatorial nomination and led the predominantly 0ut-of-state funded campaign for ouster of the three justices in the November retention vote, has called on the four remaining justices to voluntarily resign their positions.

Cady’s speech made clear not only that the justices intend to remain on the bench, but their firm belief that the decision they rendered was their duty despite popular thought and socially conservative wishes.

“In our government, courts are legal institutions — not political institutions,” Cady said. “When a person comes before a judge, that person expects the judge to be neutral and to render a ruling based upon the proven facts of the case and applicable legal principles — not based upon public opinion. Public opinion often shifts. The will of the people followed by the courts is the will expressed in our law as constrained by the written principles in the constitution. If this were any other way, why have a constitution?

“It is also written into our code of ethics, modeled after national standards, that all judges must make decisions without being swayed by public clamor or fear of criticism. If it were otherwise, the rule of law would surely be compromised, as would our constitution.”

At several points within the address, most legislators and observers in the statehouse provided standing ovations. Republican legislators clearly did not join in the vast majority of these moments of applause. Cady, however, did not back down from the points he came to make.

“Unlike our political institutions, courts serve the law, not the interests of constituents. Courts serve the law, not the demands of special interest groups. Courts serve the law, not the electorate’s reaction to a particular decision. By serving the rule of law, courts protect the civil, political, economic and social rights of all citizens,” he said.

State founders, according to Cady, “anticipated the possibility that the legislature could, at times, approve laws that might conflict with the constitution.” It was for that very reason, he said, that the judiciary was given the authority to declare statues or parts of statues invalid if such violations occurred.

“The duty of the courts to review the constitutionality of laws is known as judicial review and is one of our most basic responsibilities,” Cady said. “Judicial review has been recognized as the responsibility of courts in this country for well over 200 years. … This is the very duty the court exercised in the Varnum Decision.”