Sandra Day O'Connor has done an almost frighteningly good job of keeping herself outside the political fray since she retired from the Supreme Court in 2006. Even when afforded an opportunity to pick sides she tends to avoid doing so, unless it's the high road. Of the two causes she has championed, one—returning civics education to the public schools—is the kind of inoffensive issue that can bring together hippies and Tea Partiers. It's the second—doing away with judicial elections—that shows how hard it is to truly stay above politics when you're arguing for depoliticizing the judiciary. Last week O'Connor went to Iowa to give a speech about the benefits of appointing judges based on merit. And suddenly everyone thinks she's picked sides on gay marriage.
Voters in 21 states elect their Supreme Court judges directly, but in 1962, Iowa voters amended their constitution to create a "merit selection" system whereby an appointed panel submits the names of potential judges to the governor, who then appoints justices from that list. After a period of some years, voters can oust these justices in a retention election. In Iowa only four judges have failed to win their retention elections, never as a result of a vote in a case.
That's all about to change, though. In April 2009, the Iowa Supreme Court issued a 7-0 decision in Varnum v. Brien, finding that the state statute limiting marriage to a man and a woman violated the equal protection clause of the Iowa constitution. Bob Vander Plaats, a well-known social conservative in Iowa, ran a failed campaign for the Republican gubernatorial primary in June, campaigning largely against the decision. Now Vander Plaats has turned his attention to the retention elections against three of the state supreme court justices, the only three who will be on the ballot this fall. Marsha Ternus, the chief justice of the Iowa Supreme Court, is one of the three. In case it matters to you, she was appointed by a Republican governor. But never mind: Last month Vander Plaats founded Iowa for Freedom, seeking to oust Ternus and two other judges, David Baker and Michael Streit, in retaliation for their votes to allow gay marriage in Iowa. If the three are booted from the court, the governor—now a Democrat, by the way, but as I said, never mind—will simply replace them. Gay marriage will still be legal.
What's new about Vander Plaats' crusade against the court is that a usually dishwater-dull Iowa retention election is gaining national financing from groups such as AFA Action Inc, the political arm of the American Family Association, which says it's contributed "several hundred thousand dollars" for radio ads. Vander Plaats concedes that he failed to raise the $1 million he had initially hoped for (he won't disclose how much he has raised) and declines to say who funds his group. But he certainly has enough money to pay for television and radio ads as well as a ground campaign against the three justices. The three justices in question, seeking to avoid looking like politicians, have done almost nothing to defend themselves. According to a local news report, "They have not granted media interviews regarding the retention election, and though they legally could form committees to raise money and fend off the challenge that is coming at them from Vander Plaats, they have not done that."
So facile is Vander Plaats' definition of "judicial activism" that he continues to threaten Iowans that if the court is allowed to rule on gay marriage, it will also be free to rule on "private property rights, free enterprise, free speech, gun rights, right to work laws." "Any liberty you hold dear is up for grabs," he told the Sioux City Journal. Of course, courts have weighed in on all of these issues. That's their job. Often they've granted broader free speech and gun rights. So the issue isn't really that your constitutional rights are suddenly up for grabs. It's that Vander Plaats wants to be the one who grabs them. And he isn't afraid to pay for the privilege either. He seems immune to the irony that Iowa for Freedom is trying to subvert a state merit-selection process passed by Iowa voters, by empowering voters to stand up for their rights to enact their own state laws.
Chief Justice Ternus gave a speech last week responding for the first time to Vander Plaats' charges by explaining that sometimes the will of the people isn't the only consideration for a court, and that "even though a law may be supported by a strong and deep-seated political belief and popular opinion, if it violates the constitution the courts must declare it void." Ternus warned that courts "are less likely to be fair and impartial when judges succumb to the pressure to make popular decisions—whether to satisfy contributors to the last election or to gain support for the next election." This is precisely the point O'Connor made in her remarks to an Iowa State Bar Association gathering last week, where she pronounced Iowa's merit selection process "an excellent system" and warned those in attendance that "we have to address the pressures that are being applied to that one safe place, the courtroom. … We have to have a place where judges are not subject to outright retaliation for their judicial decisions."
Vander Plaats promptly declared O'Connor's remarks a triumph. First Iowa for Freedom fired off a press release thanking her for "supporting its cause." Iowa For Freedom's campaign manager Chuck Laudner then clarified that he is heeding O'Connor's call to ensure that "politics should not enter into the process" of judicial selection, apparently by taking huge sums of money from outside groups to run political ads against judges.
Other opponents of gay marriage interpreted O'Connor's message slightly differently. Carrie Severino saw it as "unseemly" fronting for George Soros. Other headlines implied that O'Connor supported pro-gay-rights judges. But what O'Connor was arguing for has nothing to do with judicial politics or gay rights or constitutional interpretation, and everything to do with money and judicial elections. That shouldn't be a partisan issue.
Last month the Brennan Center for Justice released a report on judicial campaign spending, for which O'Connor wrote the foreword. The report found, among other things, that:
* Between 2000 and 2009, campaign spending for state supreme court seats jumped to $206.9 million, compared with $83.3 million a decade earlier.
* The candidate who raised the most money won 11 of 17 contested races in 2007–8.
* Twenty of the 22 states with Supreme Court contests had their costliest-ever campaigns between 2000 and 2009.
* Special-interest groups and party organizations accounted for $39.3 million, more than 40 percent of the estimated TV air-time purchases between 2000 and 2009.
* In 2008, special-interest groups and political parties accounted for 52 percent of all TV spending nationally—the first time non-candidate groups outspent the candidates on the ballot.
What frightens O'Connor about judicial elections isn't the idea of more accountability or transparency for judges: She favors that. In her introduction to the Brennan Center report she wrote, "elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not those contributions actually tilt the scales of justice, three out of four Americans believe that campaign contributions affect courtroom decisions." What scares O'Connor is that the millions of special interest dollars pouring into these judicial election campaigns will start to influence judges. She also worries that millions of dollars of special interest money pouring into judicial races tells the public exactly what Vander Plaats is trying desperately to prove in Iowa: It's not just justice that can be bought and sold to the highest bidder, it's the justices themselves.