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The anti-gay marriage attack on Iowa’s Supreme Court | Hunter of Justice

The anti-gay marriage attack on Iowa’s Supreme Court

by on September 26, 2011  •  In Marriage

The American Prospect has the backstory on the campaign that defeated three justices of the Iowa Supreme Court in their retention campaigns as payback for votes to allow same-sex couples to marry:

The Iowa Supreme Court publishes, on average, a little more than 100 decisions a year. Each ruling goes online first thing Friday mornings. When Varnum v. Brien went live at 8:15 A.M. April 3, 2009, the court’s website crashed when more than a million visitors tried to read the opinion. In a unanimous decision, the seven supreme court justices–five Democratic and two Republican appointees–had ruled that Iowa’s ban on marriage for same-sex couples violated the equal-protection clause of the state constitution. When county clerks began issuing marriage licenses three weeks later, Iowa became the third state with legalized same-sex marriage…

Opponents of gay marriage… were dismayed. None more so than Bob Vander Plaats, who had risen early that morning and driven three hours to join several evangelical pastors in praying outside the supreme court building… 

Vander Plaats lost the Republican nomination for governor [in 2010], but Varnum gave him the issue he had always been looking for. A year after the decision, he mobilized an unprecedented attack against Iowa’s judiciary, which had been known for its lack of partisanship. With assistance from a powerful evangelical organization from out of state, he exploited an obscure clause of judicial selection and mounted a full-throttle assault against the supreme court judges who legalized same-sex marriage. No laws changed, but three of the judges lost their positions. The state’s progressive community is still grappling with the question: How did a fringe political candidate upend what had once been a model of judicial independence?…

The state owes that reputation [for nonpartisan courts] to its 1962 adoption of the “Missouri Plan” for placing judges on the bench. Under the system, a panel of 15–seven selected by the governor, seven by the bar association, plus a sitting state supreme court justice–interviews potential judges on their experience and knowledge of the law. The panel is barred from asking interviewees their political affiliation. The governor picks from three finalists. Supreme court justices go on the ballot at the first general election after they are selected and every eight years after. Until 2010, Iowa’s retention votes had always been ho-hum affairs. Only four lower-court judges had ever lost a retention vote, in each case because they were accused of malfeasance. A campaign had never been waged against a supreme court justice…

After [the] hearing [in Varnum], the justices [met] in a small conference room on the fourth floor of the supreme court building. …Justice Mark Cady, one of the two Republican appointees, had been randomly selected to write the majority opinion on the Varnum case, which meant that he would speak first. If any of the justices were going to find fault in the plaintiffs’ interpretation of the constitution, it would likely be Cady, the strictest constitutionalist of the group. After laying out both sides’ arguments, Cady announced he was ruling in favor of the plaintiffs. The justices went clockwise around the granite-topped table. They did not agree on every legal point, but after two hours, all of them had sided with the plaintiffs. “We went around the table, and we just pushed back and said, ‘Jeez, this is going to be unanimous.’ We were just shocked,” a justice later told me.

…Iowa Republicans divide roughly into two groups: the evangelical right devoted to social issues and fiscal conservatives concerned with minimal government. The pro-business Republicans have long run the party, but their power has waned. In the last decade, evangelicals have developed a sophisticated infrastructure that includes motivated volunteers, expertise in phone banking, and deep ties to the national Christian right, which has poured resources into Iowa because of its outsized influence on presidential campaigns. Evangelicals were 60 percent of the Republican caucus voters in 2008… 

Heading into the 2010 gubernatorial election, the moderate wing of the Iowa GOP was depleted, and it appeared Vander Plaats might back into the nomination. For the first time in his career, he had a galvanizing issue.Varnum was the sign of government overreach he had been warning about for years. At almost every campaign stop, he vowed that on his first day in office he would issue an executive order to halt marriage licenses for same-sex couples until the public voted on a constitutional amendment–an idea dismissed by legal scholars as outside the governor’s authority.

Vander Plaats’s extremism frightened Republican elder statesmen, who were convinced he would cost the party the general election despite the unpopularity of the incumbent Democratic governor. They were desperate for an alternative and found the perfect candidate in Terry Branstad. A four-term governor in the 1980s and 1990s, Branstad had left office during an economic boom and remained a beloved figure. The primary turned into an all-out war between the two wings of the party.

Branstad dismissed Vander Plaats’s executive order as a fantasy. Vander Plaats hammered the former governor for being soft on gay marriage, emphasizing that Branstad had appointed two of the justices who had ruled on Varnum. With money, name recognition, and the party establishment on his side, Branstad was considered the favorite, but thanks to enthusiastic support from Christian activists and favorable coverage from WHO-AM, the state’s most influential radio station, Vander Plaats ran a much more competitive race than anyone imagined. Branstad won with only 50 percent of the vote, while Vander Plaats gained 41 percent. If another social conservative hadn’t siphoned off 9 percent, Vander Plaats might have won.

After the election, Vander Plaats found himself in political limbo. He had no desire to endorse Branstad, but he did not want to fade from the spotlight after outperforming expectations. Rumors circulated about a third-party gubernatorial run. Indeed, he says, the possibility crossed his mind before he decided not to pursue a campaign that had no shot of winning.

On August 6, Vander Plaats held a press conference on the steps of the supreme court. Instead of announcing that he would run for governor as an independent, he surprised everyone when he declared that he would spearhead an effort to remove the three supreme court justices up for retention in November: Chief Justice Marsha Ternus and Associate Justices David Baker and Michael Streit. “This election, in my opinion, to remove these judges,” he said, “is one of, if not the, most important election in our country.”

The immediate reaction was one of bewilderment. It was only three months before Election Day, and an all-out assault on supreme court justices was something new to Iowans. Not only did Vander Plaats need to convince voters that the judges must be removed; he had to teach them the mechanics of the retention vote, a matter so arcane that voters had to flip to the back page of the ballot to find the names of judges. Vander Plaats’s new campaign was also strictly symbolic. Whatever the outcome, marriage equality would remain law. If he succeeded, the only change would be three new names added to the unemployment rolls. Liberals scoffed. Vander Plaats had never won an election, and Iowans, they were convinced, would never want to politicize their courts…

What changed between February and August? Vander Plaats’s presence certainly lent credibility, but the anti-retention campaign would not have gotten off the ground if an organization outside of Iowa hadn’t stepped in. Although Vander Plaats insisted that he was leading a “grassroots” operation that was a pure product of Iowans’ discontent, it was, in fact, an extension of the American Family Association (AFA). Iowa liberals claim that the entire campaign was an AFA invention, with Vander Plaats serving as a paid spokesperson, but it is unclear who approached whom. Records do, however, prove that once Iowa for Freedom was formed, it received all of its funding from the AFA. Its literature and ads included a disclaimer defining Iowa for Freedom as a “project” of the AFA…

For the AFA, the Iowa retention vote was not about three particular justices. Rather, it was a chance to make a statement on a favorite conservative issue: the activist judge. The specter of courts “creating” law has pervaded modern conservatism at least going back to Brown v. Board of Education and has been a primary focus of conservatives since Roe v. Wade. “For a decade or so,” Hurley says, “the most frequent phone call we would get at election time was ‘What are we going to do about the judges?’” But most of the decisions that offended conservatives came from the federal courts, which left the Christian right no avenue to confront judicial activism; once federal judges are in office, they are insulated from political pressure. Varnum, though, offered the AFA the perfect opportunity to organize against judicial activism. Removing the three justices might be symbolic, but it was a powerful symbol: State judges would know their jobs would be at stake when they ruled against the values social conservatives cherished. 

From the beginning, the judges’ supporters floundered. Numerous organizations came out and defended the merit-selection system–from the state Bar Association to the Interfaith Alliance of Iowa–but because they were all nonprofits, they were prevented from campaigning for the judges themselves. It wasn’t until early September that Democratic operatives formed a direct advocacy organization called Fair Courts for Us. When the group approached national donors, though, their entreaties were dismissed–an early indication of the uphill struggle pro-retention forces would be facing. “The threat was not apparent,” says Jeff Link, a strategist who worked for Fair Courts.

In contrast, several social-conservative groups joined the AFA in its effort to oust the judges. The National Organization for Marriage spent $635,627, almost all of it on TV ads. The Family Research Council contributed $55,996 and ran a “Judge Bus” tour in conjunction with Hurley’s Iowa Family Policy Center. Vander Plaats led the tour, joined by figures like Steve King and former Pennsylvania Senator Rick Santorum. Republican presidential hopefuls Tim Pawlenty and Newt Gingrich lent their support when stumping in the state. Gingrich went even further, funneling $125,000 to the AFA to help launch the campaign. According to campaign-finance filings, the AFA only spent $171,025 on Vander Plaats’s organization; the true figure, though, would be higher if the staffers they provided were included. All told, conservative groups poured in a little less than a million dollars–an unheard-of figure for an Iowa retention election and a kingly sum for the state’s inexpensive media markets.

Fair Courts for Us only raised $366,000. For any voter tuning in, the imbalance in resources was clear. Iowa for Freedom had placed TV ads by early September, and the attacks bombarded viewers the rest of the fall. The pro-justice groups never made it past a few radio spots. Strapped for money, Fair Courts could only purchase airtime after each new check arrived, whereas Iowa for Freedom could map out a media strategy. Fair Courts tried to send a piece of mail to every voter who had requested an absentee ballot; Iowa for Freedom had the same idea, but its financial advantage allowed it to call every absentee voter…

Even if they’d had more money, the pro–retention groups would have been in trouble. They couldn’t offer the same easy message as Vander Plaats. “A lot of people were trepidatious about making this about same-sex marriage,” says Troy Price, executive director of One Iowa, the state’s largest LGBT-rights group. “People had looked at other states and had seen what had happened, and they were afraid that if this was a straight-up referendum on Varnum, that would be why the judges were defeated.”

Discarding the issue that most concerned liberals, Fair Courts offered instead a prolonged civics lesson on the need for judicial independence–which did not make for compelling 30-second commercials. “We were not as nimble as Vander Plaats,” says Scott Brennan, a former Iowa Democratic Party chair who worked on the campaign. “We spent a lot of time talking about facts as opposed to attractive concepts, which is what Vander Plaats spent a lot more time doing.”…

With each passing day, Vander Plaats’s campaign seemed less and less implausible. Republican turnout was expected to be huge and, to the surprise of many, the retention vote dominated the attention of Iowans, much more so than the gubernatorial race, where Branstad was the heavy favorite. “It was a hot issue,” strategist Link says. “People were talking about it at work. People mentioned that there were conversations about it at churches.” According to a Des Moines Register poll conducted a few days before the election, the anti-retention forces held a statistically insignificant lead. On Election Day, though, it wasn’t even close. Justices Baker and Streit lost by eight-point margins, Chief Justice Ternus by ten…

The retention election transformed Vander Plaats’s reputation. The candidate who had never won office is now a political figure whose blessings presidential candidates seek. He has become the de facto head of Iowa’s Tea Party. Shortly after the election, he launched a new organization called The Family Leader and announced a “presidential lecture series” that would feature all the major Republican candidates. The political newspaperThe Hill named Vander Plaats, alongside Chris Christie and Sarah Palin, on its list of “10 coveted endorsements for Republicans running for president.”…

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