Panelists warn of impending battle for independent judiciary

A coordinated effort is underway to dismantle judicial merit selection processes across the country, the head of the Iowa ACLU says, threatening the independence of the judicial branch in the Hawkeye State and beyond.

Ben Stone, executive director of the American Civil Liberties Union of Iowa, said that would leave people accused of crimes “in a horrid position.”

“They want people that are terrified of public opinion, because they know they can manipulate public opinion to get what they want,” Stone said.

Social conservative groups including the Iowa Family Policy Center (now known as The Family Leader), the National Organization for Marriage, the American Family Association and Iowa for Freedom launched a major campaign last year to oust three Iowa Supreme Court justices that participated in a unanimous decision that found the state’s legislative ban on same-sex marriage to be a violation of the Iowa Constitution’s equal protection clause.

They were successful in doing so, and expectations are the remaining four justices that supported the unanimous decision in Varnum v. Brien will also face difficult retention votes in 2012 and 2016.

Meredith Palmer of Lambda Legal said that’s a serious threat to minority rights. Lambda Legal is the nation’s oldest and largest legal organization working for the rights of lesbians, gay men and people with HIV/AIDS. The group filed the Varnum lawsuit.

“As history has proven, it’s been the courts that have really upheld constitutional protections before the majority thought that was what America is all about,” Palmer said.

Connie Ryan Terrell, executive director of the Interfaith Alliance of Iowa, said the courts don’t make decisions based on popular will. Groups working against Iowa’s judicial system know that, she said, but they turn that around with a message that judges are ignoring the will of the people.

“They don’t fight fair. They don’t fight by our rules,” Terrell said. “They don’t fight by constitutional or legal rules. Churches that are of the religious right ilk, they do promote candidates in their churches. But it does no good to call them on it.”

And Stone noted the recent U.S. Supreme Court decision granting new political spending rights for some groups allows “the ability to secretly channel money into places and really manipulate with deception what people learn, what people hear.”

“There’s this long-running effort to make it possible for … cynical efforts of powerful people to manipulate less informed groups, less informed people, to override the rights of minorities, the rights of people that are dissenters, privacy rights,” Stone said.

Palmer said those new political spending laws make it difficult for Lambda Legal. Because of the group’s status as a non-profit, it can’t endorse candidates or tell people how to vote. Lambda Legal will instead focus on education and outreach as 2012 approaches, and Justice David Wiggins comes up for retention.

Palmer said it can also be difficult for those looking to protect the state’s judicial branch and merit selection process to counter the opposition’s seemingly simple and clear message.

“When judges are punished for ruling on issues with these misguided messages … the message is so easy,” Palmer said. “It seems so American. If you don’t like what the judges say, vote them out.”

Despite the difficulties, Terrell said those defending the justices and the judicial system overall “need to take this as a personal mission,” and make it clear there are people across the faith spectrum that don’t agree with the efforts to throw out the justices and the merit selection system.

“It is incumbent upon us to fight harder,” Terrell said. “I’m not going to tell you to fight their way, because I’m not going to do that. We have to fight by our own sense of integrity and follow the laws. But we do have to fight harder.”

Iowa is often praised for its merit selection process in appointing judges, a system put in place in the 1960′s. Under that system, a 15-member judicial nominating commission composed of lawyers and non-lawyers recommend appointees to the governor based on quality, integrity and professional ability – rather than on political ability or connections.

Allan Vestal, dean of Drake Law School, noted the justices were penalized for simply upholding the state’s equal protection statute. That makes clear the need to defend Iowa’s courts, he said.

“It seems quite remarkable that we should even have this as a matter of debate, but here we are,” Vestal said.

The comments were made at a series of panels held as part of an event called Defending Iowa’s Courts, which took place last week in Des Moines. About a dozen groups sponsored the event, including Lambda Legal, Justice not Politics, Interfaith Alliance of Iowa, One Iowa and the American Civil Liberties Union of Iowa.

The panelists discussed legislative attacks against Iowa’s courts following the Varnum v. Brien decision; how those attacks threaten judges’ ability to rule fairly and impartially; and how to engage communities to defend the state’s current court system.