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Sunday, January 02, 2011

Judicial Retention and the Missouri Plan: Thoughts from Iowa

Thanks to Dan and crew for inviting me back, I’m thrilled to be here.  I am just about to send out a short online-type piece explaining some of my thoughts about the judicial retention elections last month here in Iowa.  As you probably know, a coalition of social conservatives managed to vote out the three Iowa Supreme Court justices that were up for retention last month.  This, of course, was a retaliation vote for last year’s unanimous decision upholding same-sex marriage.  The story of the campaign is certainly interesting enough: Nearly a million dollars in anti-retention support money flowed in from out of state, and several Iowa churches openly defied the IRS by campaigning vigorously against the judges.  In the end, the anti-retention forces got the support of the simple majority necessary to oust the three justices on the ballot.

And the fun has continued even after the election.  Anti-retention leader Bob Vander Plaats—a failed gubernatorial candidate and former high school principal—likened the remaining justices to “teens who flee a beer party” and called on them to “do the honorable thing [and] share the punishment of their peers” by resigning.  I kid you not.   The justices responded by electing Mark Cady—author of the same-sex opinion—to be their new Chief.   Besides the obvious substantive statement, Cady’s elevation has a certain political irony.   He was appointed back in 1998 by former Republican Governor Terry Branstad, who came out of retirement to reclaim his old office on the same night as the judges’ ouster.  This time around, Branstad has made it disturbingly clear that only certain political viewpoints need apply for the Supreme Court, reportedly warning the judicial nominating commission that “only candidates who respect Iowa voters’ rejection of last year’s same sex marriage ruling should be considered." 

Aside from the all the ugly politics, the retention election has gotten me thinking about the structure of the Missouri Plan for judicial selection, which Iowa (like many states) has adopted.  Pursuant to Iowa’s version of the Plan, a nonpartisan nominating commission forwards three names to the Governor, who then makes a selection.  The judge then appear on the ballot periodically for a simple majority retention vote by the people.  This past election has, I think, demonstrated a certain weakness in that structure.   It seems problematic, to me at least, that judges who are charged with protecting the constitutional rights of (sometimes unpopular) minority groups should face retribution at the hands of a simple majority of voters.  We wouldn’t let a simple majority change the Constitution—that, after all, requires a heightened demonstration of political will—but we do allow them to tyrannize the constitutional court.  My modest suggestion is that a non-retention vote should require some kind of supermajority to succeed.  This, I think, would help ensure that it is truly “the People”, not some temporarily coalesced majority, which has the authority to say when a judge has overstepped his or her constitutional bounds.  But maybe that’s a bad idea—and, if so, I’m sure you’ll let me know why.


Posted by Ian Bartrum on January 2, 2011 at 05:07 PM | Permalink


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Jack: A very fair and good point. I still hold onto the (perhaps naive) notion that selection and retention are different, in that retention elections may be a reaction to a particular decision. But, maybe a better model is something like what Vermont does: Nominating commission; executive appointment with Senate approval; then periodic retention votes in the House. This might balance both ends of the process better (though it is arguably more "elitist").

Posted by: Ian Bartrum | Jan 3, 2011 1:00:38 PM

If there is to be a super-majority to remove judges, should there also be a safeguard in the appointment proces to ensure that a super-majority considers the appointees fit to decide constitutional issues

Posted by: jack | Jan 3, 2011 11:02:11 AM

The Iowa retention election simply pointed out the flaw of the Missouri plan. The entire concept of the Missouri plan and "merit" selection is an effort to take the politics out of judicial selection. So naive!

Those who have an interest in the selection of judges will figure out what must be done to select judges. You cannot, despite your best intentions, take the politics out of judicial selection. It does not matter if judges are elected or appointed, politics will simply move from public view to the conference room. Politics will remain.

I love the quote from a Missouri appellate judge about the “merit Selection”. He laughed and said that "merit combined with knowing the right people were the essentials in his selection.”

Posted by: Ken Griffis | Jan 3, 2011 9:39:58 AM

Ian, I think you under-estimate how much autonomy (and room for abuse) is conferred by the requirement of a "simple majority." It is really pretty hard to mobilize voters to oust a judicial candidate, and the historical record reflects that, I think. Of course, you might think that even more autonomy (and abuse) would still be a net good. But it is quite hard to make really sound arguments about this, since we have no hard empirical data (and really, no great way to even measure these variables) on how much social benefit autonomy confers, and how much attendant abuse a given level of autonomy invites, or what the social cost of that abuse is. You end up with just unspoken intuitions (and often these intuitions are informed by recent political results, which need to be filtered out) about whether the benefits of moving in one direction outweigh the costs. The arguments are all pretty predictable, and we get into an empirical impasse.

Posted by: TJ | Jan 3, 2011 3:58:32 AM

Nice points.

Jordy I fully agree with your first "political feasibility" point. Not in this climate anyway. And I think your second point is really a product of the first. The majority retention election was a political tradeoff to satisfy those who saw the merit selection process as "elitist" and wanted straight up judicial elections. Maybe they're right... and maybe I'm just WAY elitist :)

TJ, I think you're quite right about the tradeoff between autonomy and abuse. (And I'm sorry if I was a bit defensive before). I am just wondering if the proper balance point isn't something at least slightly more than a simple majority.

AP: Maybe it is refreshing to have the litmus test front and center. I guess my real problem with his statement is that it suggests that this is not "his" litmus test but "the People's"--and I don't think we know that yet.

Posted by: Ian Bartrum | Jan 3, 2011 12:41:40 AM

Ian, it adds to your structural argument in making sure that it is a structural argument, not a political argument in disguise. Granting that, there is a basic trade-off between judicial autonomy and judicial abuse. By "abuse," I mean judges indulging in their own political preferences, not more flagrant abuses such as taking bribes. And the point is that judges can indulge in their political preferences on both sides of the political spectrum.

Taking the partisan angle out of the picture makes the trade-off clearer. Surely what we do not want is absolute autonomy, that is, a super-majority requirement to amend the constitution and replace judges (which is an indirect way of amending the constitution) so tough that it cannot ever be done, such as requiring a majority of 100% of all voters. In that world, judges will run completely amok and do whatever they like (unless you screen on the front end in the appointment process, but that is just another way of limiting autonomy). At the same time, we do not want zero autonomy, since some insulation of the judiciary is generally accepted as a good idea.

Having ruled out the extremes, all you are advocating is that we more toward relatively more autonomy (and relatively more abuse). Whatever your specific arguments, at the end of the day all the arguments come back to this basic trade-off. Relatively more autonomy brings also relatively more abuse. People who are blinded by partisan concerns (who don't think of judges ruling in their favored way as "abuse") often fail to see the trade-off. But if you are really making a structural argument, then you are basically trying to find the optimal location on the autonomy-abuse trade-off from a structural viewpoint, and that is really quite difficult.

Posted by: TJ | Jan 2, 2011 11:14:01 PM

Ian, I think this is a very interesting idea. However, I can think of one practical objection and one design objection.

The practical objection is that a supermajority requirement would never make it through the political process. In recent years, opponents of retention elections have frequently made the (misleading) argument that nearly all judges are retained anyway, and they would certainly use this argument to fight against a supermajority. This would make change virtually impossible, especially in states where the process was written into the state constitution. Witness the depressing failure of the effort to introduce the Missouri Plan into Nevada this past year.

The design objection is that the process for appointing judges would not mirror the process for retaining them, leaving an inadequate check on judicial quality on the front end. I could see how people might object to a judge being appointed by clearing a narrow majority of a small commission, then being chosen by a single person – the governor – without a broader political check. The compromise the Missouri Plan makes is that the public can get rid of a bad judicial choice, but the supermajority requirement would make it very difficult to get rid of even a judge who is widely recognized to be incompetent or unacceptable. Indeed, in most studies I have seen, about one-third of voters always vote to retain a judge, even (or especially) if they know nothing about the judge. This would mean that even terrible judges might remain on the office due to the inertia of voter ignorance.

In the end, a supermajority requirement might not actually make much of a difference. The ousting of state supreme court justices, while usually frustrating, is quite rare. I am aware of only a handful of justices who have not been retained in the last twenty-five years – Rose Bird, Joseph Grodin, and Cruz Reynoso in California, Penny White in Tennessee, David Lanphier in Nebraska, and the three Iowa justices.

I strongly agree with your sentiment that the retention of a judge or justice should not rest on the hijacking of the political process by special interests. But I think the more expedient method is to educate voters by implementing strong judicial performance evaluation programs in retention states. None of the ousted justices I mentioned above were officially evaluated by a nonpartisan program prior to their retention elections, which left them vulnerable to political attack. By contrast, in recent years justices facing politicized retention battles in other states such as Colorado, Kansas and Arizona were able to point to the formal evaluations to educate the public about their body of work outside of one or two controversial decisions.

Posted by: Jordy Singer | Jan 2, 2011 10:48:12 PM

"But it is a bit more disturbing than usual (for me at least) to hear a Governor flatly tell a judicial nominating commission who to put forward in these terms"

I feel just the opposite. Although I disagree with Branstad's views on SSM, this type of clarity is refreshing. It'd be great if more executives explicitly set forth the criteria they used and told us when they would autoding someone, rather than shield the appointments process in a cloak of secrecy.

Would you feel just as strongly if Branstad gave a clear command on less controversial subjects (e.g., "the nominee must have prior experience as a judge" or "the nominee must have a law degree")? Or, and this perhaps echo's TJ's comment, is it really the case that you simply don't like the substance with the command and hence object to it?

Posted by: anonprawf | Jan 2, 2011 10:33:08 PM


As a matter of fact, I would be "equally passionate" about retaining a judge who decided same-sex marriage was constitutionally forbidden--though I'm not sure what this adds to my underlying structural argument. And I'm also not sure where you got the idea that these judges "ruled in a way [I] like". Perhaps you're reading into my post? Or maybe it's something about this topic in general that leads people to think in politicized terms rather than design terms.

My point is simply that constitutional rights are intended to protect minorities against majorities--and allowing majorities to intimidate the judges that enforce those rights seems like a bad design feature. Perhaps if I used the example of gun rights it would be easier to see?

Anyway, If you think that a supermajority is a bad idea for non-issue related design reasons, I'd be glad to hear them.

Posted by: Ian Bartrum | Jan 2, 2011 10:13:37 PM

You don't like "temporarily coalesced majorit[ies]" deciding constitutional rights. It seems that having judges do it is not necessarily better as a general proposition. One cannot help but suspect that you are passionately committed to protecting these judges only because they ruled in a way you like, which of course should not be the guiding criterion in designing constitutional structure.

If you would be equally passionate in defending requiring a super-majority to defeat judges who rule, say, that same-sex marriage is constitutionally forbidden (say they find that legalizing same-sex marriage violates free exercise of religion) and that legalizing abortion violates the right to life in the 14th amendment, then there might be something to your argument.

Posted by: TJ | Jan 2, 2011 10:02:06 PM


I meant for this to be a post about judicial retention structure rather than "litmus tests". I do think such tests are a bad idea, no matter the party of the executive. And I'm also aware that all executive's may have them, and perhaps that is in some ways inevitable. But it is a bit more disturbing than usual (for me at least) to hear a Governor flatly tell a judicial nominating commission who to put forward in these terms. Maybe I'm wrong about all that and litmus tests are a good idea for some reasons I haven't considered.

In this case--and more to my point about simple majorities vs. supermajorities etc.--I do think it's at least troubling for Branstad to suggest that the voters' theoretical rejection of same-sex marriage via the retention elections amounts to something like a constitutional amendment--one that no competent nominee can now ignore. Branstad can certainly say he's not appointing anyone who supports same-sex marriage because HE doesn't think its constitutional, but it's quite another thing to suggest that "the People" have now spoken on this issue. I don't think that has happened, which is what leads me to wonder about a supermajority requirement.

Posted by: Ian Bartrum | Jan 2, 2011 8:38:28 PM

"Branstad has made it disturbingly clear that only certain political viewpoints need apply for the Supreme Court"

How is this any different from a Democratic president using abortion or whatnot as a litmus test? We can be pretty damn sure Obama will not appoint someone who is pro-life; why isn't Branstad entitled to apply litmus tests, too?

Of course, demanding that someone reject gay marriage may be more odious than demanding that someone be pro-choice. But that goes to the substance of the particular litmus test, not to the threshold matter of whether restricting appointees to particular view points is "disturbing." Or perhaps you would consider Obama just as odious as Branstad, since Obama undoubtedly (even if unofficially) requires potential nominees to espouse certain political viewpoints.

I should qualify this by saying that I assume that the Iowa governor has roughly the same perogative in choosing among the list of 3 candidates as the President has in appointing a justice. This assumption may be wrong.

Posted by: anonprawf | Jan 2, 2011 6:56:20 PM

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