Gay Marriage has judges on Eletoral hot seat
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The northwest Iowa judge didn't know how to respond to the newspaper ads, radio spots or "Vote No" pamphlets calling for his removal after he divorced a lesbian couple in 2003. Judicial ethics rules banned campaigning, except to respond to an attack. Direct fundraising was not an option.
Neary survived that campaign against him six years ago, but judges who face retention votes this year are braced for similar political attacks, in response to the Iowa Supreme Court decision that made same-sex marriage legal.
At least one group that tried to impeach a Polk County judge in 2007 over a same-sex marriage ruling is considering an effort this fall to boot judges off the bench. Others who opposed that decision say they will encourage supporters to vote "no" on all judges who appear on the November ballot.
Iowa voters have removed four judges from the bench since the state's merit selection system was enacted in 1962.
Legal observers predict the Varnum vs. Brien same-sex marriage case will inspire last-minute calls to unseat judges, potentially politicizing the retention votes of jurists who are supposed to remain impartial. The ruling's opponents say that the justices have already injected politics into the court and exceeded their constitutional power.
"I'm not at all hesitant to say I expect attacks," said Rachel Paine Caufield, a Drake University assistant professor who studies judicial selection and retention. "We've seen it in other states, and we've seen that they often come late in the game."
Among those on the ballot this November: Iowa Supreme Court Chief Justice Marsha Ternus, and Associate Justices Michael Streit and David Baker — all part of the seven-member court that last year unanimously overturned the state's decade-old gay marriage ban. Each declined to be interviewed for this article.
Judge fought to keep his job, and won
Neary, appointed by Gov. Tom Vilsack in 2002, was challenged after he divorced a Sioux City lesbian couple that had formed a civil union in Vermont. Neary later said he did not realize the couple was same-sex, and amended his ruling to say he had only ended a civil union.
The 2003 decision — before gay marriage was legal in Iowa — triggered an outcry from social conservatives and calls by Rep. Steve King, a Republican, to vote Neary off the bench.
Neary held his seat with 59 percent support, but that was the narrowest margin of any Iowa judge retained in the past decade, a Des Moines Register review of voting data shows. Judges in that 2004 election were retained with an average of 77 percent support, a figure that has changed little in recent years.
Neary's retention fight mobilized a range of activists.
Neary, 51, said he borrowed money from a family member and recruited two well-known local attorneys — a Democrat and a Republican — to campaign on his behalf. He met with his opponents in the basement of an Orange City Pizza Ranch. Neary said he has never looked to see who contributed to his campaign.
"My loyalty is to the law," Neary said. "It's to make a decision to the best of my abilities, given what I believe the law to be. I don't know all the answers. And I don't believe that I — nor do I believe that many judges at all — bring to their job a particular agenda."
But Neary didn't forget the campaign against him.
"I will tell you, honestly, that for two years after my retention election, I thought carefully about how I was going to rule on things," said Neary, who stands for retention again this year. "I don't want to say that I changed rulings, because I don't think I ever did. But you ask yourself: Who's going to care about this decision?"
Kevin Alons, a Salix conservative who tried rally voters to oust Neary, said he waged the campaign because he felt the ruling was an abuse of power. Alons said he has no plans to campaign against judges this year, but routinely encourages Iowans to vote "no" on all who are up for retention.
"At this point, there's no accountability in the system," Alons said. "Until the judges recognize that it could happen, they apparently don't give a rip — what people think, what the Constitution says, what the intent of the lawmaker was."
Polk judge: Majority doesn't always rule
Judge Robert Hanson said in an interview that he anticipates some effort before the November election to remove him.
"I don't know exactly where they will come from or what they'll amount to," Hanson said. "The cynic in me — the realist in me — suspects that people have long memories, and won't forget these things."
The Polk County district judge made the initial ruling in the landmark Varnum vs. Brien case, deciding that same-sex couples could not be denied licenses to marry. Iowa's Supreme Court unanimously upheld his decision.
Hanson was appointed by Gov. Tom Vilsack in 2003 and was retained the next year with 79 percent support. But, he said, after the ruling he was contacted by individuals who appeared to believe that the judge himself had initiated the lawsuit.
In fact, the lawsuit was filed by six same-sex Iowa couples and backed by the national gay rights group Lambda Legal.
Judges, Hanson said, are held accountable in several ways: the appeals process, which allows higher courts to overturn decisions; impeachment for judges who commit crimes or other serious ethical breaches; the merit selection process that chooses judges; and retention votes.
But the belief that judges should simply reflect majority opinion "flies in the face of the whole notion of the judicial independence," Hanson said.
"It flies in the face of the notion that we don't want every issue in this country to be decided by what the majority believes," Hanson said.
Bar Association panel defends some judges
Political attacks on judges are rare in Iowa, said Dwight James, a Des Moines lawyer who heads an Iowa State Bar Association panel on judicial independence.
But, James said, he anticipates attacks this year on the three Supreme Court justices who face retention, and possibly on judges who have performed same-sex marriages. Judges who marry heterosexual couples must also perform marriage ceremonies for gay couples, the Iowa attorney general's office has said.
James said his committee only defends judges against unfair or politically motivated criticism, not misconduct. He said he has only responded to a handful of attacks, because Iowa's merit-selection system produces high-quality judges.
"Once we begin to get rid of judges to protect an ideology, we begin to destroy the freedoms of our country," James said. "The pendulum will swing. If you have the judges that will implement the will of this majority, maybe next time you get a different will. In either case, it's wrong."
No new groups have formed this election cycle to challenge judges, said Charlie Smithson, executive director of the Iowa Campaign and Ethics Disclosure Board.
But Smithson said political groups that exist for other purposes could involve themselves in retention campaigns.
Unlike in legislative races, he said, political action committees in Iowa can advocate for or against specific judges.
Mark McCormick, a Des Moines lawyer and former Iowa Supreme Court justice, said he doubted attacks would come from large, organized groups.
"There may be some talking and isolated invitations to vote against the judges standing for retention," he said. "The people who are enlightened on the legal aspects of the issue understand that it wouldn't really accomplish anything, other than perhaps vengeance."
From a post by Joshua at GTN ~ original source unknown.