Voters give activist judges the boot. Lawyers are shocked.

THE WALL STREET JOURNAL

November 6th 2010

Iowa's Total Recall

 "misuse of the judicial retention vote."

Voters give activist judges the boot. Lawyers are shocked.

Iowans made a clean sweep of the state Supreme Court on Tuesday, voting to recall all three justices who were up for a retention election. The rout is being played as an unprecedented politicization of state courts. Maybe if judges behaved less like politicians, they'd have less reason to fear recall votes.

Voters were expressing their dismay over a 2009 Iowa court ruling that gave the green light to same-sex marriage. That unanimous decision, which overturned a state law defining marriage as between a man and a woman, struck voters as an attempt by the seven justices to impose their views on the state. This is precisely the kind of judicial arrogance—finding a right to gay marriage in the state constitution after many decades in which no one noticed it—that the recall election was designed for.

To choose its judges, Iowa employs a version of the so-called Missouri plan, whereby a state judicial nominating commission submits two or three names to the Governor from which he may choose a new judge. Once on the bench, judges face retention elections after the first year and then every eight years to remain on the court.

In Iowa and most other states that run similar methods of judicial selection, retention elections are typically pro-forma. Judges run unopposed, and voters are rarely motivated to shake up state courts. Nationally, some 99% of judges win their retention elections, and Tuesday's triple ouster was the first jettisoning of Supreme Court justices since Iowa adopted the current system in 1962.

That's just the way the liberals like it, allowing the lawyers guild that dominates the nominating process to get virtual lifetime tenure for their selections. According to the Des Moines Register, Iowa's nominating commission includes 12 Democrats, one Republican and one member whose affiliation is unknown. Critics of the judicial ouster naturally deplored the recalls as a "misuse of the judicial retention vote."

But Iowa's voters aren't yahoos who recall judges willy-nilly, and when judges exceed their writ in such blatant fashion they shouldn't expect an automatic pass from the people whose lives are governed by their decisions. Perhaps sensing that their ouster had exposed the flaws of the process that elevated them, the three ex-justices issued a statement expressing their "hope" that "Iowans will continue to support Iowa's merit selection system for appointing judges."

We hope not. To fill the three vacancies, the state's nominating commission must now select candidates—either rushing them through the lame-duck office of departing Governor Chet Culver or leaving the choice to Republican Governor-elect Terry Branstad. That process is sure to be closely watched by Iowans whose votes against the last bunch were meant to send a message to the "non-partisan" commission picking judges. A better system would be to let the Governor nominate anyone he chooses and have the legislature offer advice and consent, as in Washington.

Groups like the George Soros-funded Justice at Stake have poured money into convincing voters that they should let committees pick their judges, but disenchantment with the system is growing. Voters in Nevada on Tuesday rejected a ballot measure that would have moved the state to a Missouri-style system, while retention elections in Colorado and Kansas were more hotly contested than usual.

Far from a beacon of judicial independence, the three Iowa justices were fired because they put their own political preferences above their commitment to the law. If judges want to avoid recalls, they should leave social legislation to legislators.