Bench Memos

Iowa’s Judges Gone Wild, Part I

The chief justice of Iowa’s supreme court, Mark Cady, made headlines last week when he defended the Iowa supreme court’s activist and poorly reasoned decision to impose gay marriage on the people of Iowa.  Cady, of course, is reacting to the fact that three of his colleagues were just fired by the people of Iowa in a landmark retention election, and to calls by some officials to impeach the remaining justices who participated in that unanimous decision.

Cady also used his remarks to defend the state’s method for choosing judges, a version of the Missouri Plan, under which the governor must choose supreme court judges from a list of nominees submitted to him by a commission dominated by lawyers.  According to Cady:  ”Iowa has the best method in the nation to select its judges.”  A fair number of people would disagree with that assessment, which is why so many states are having second thoughts about using that method to choose their judges.

For instance, I suspect many Iowans are still wondering how such a great method for selecting judges could have given their purple state a supreme court that embraces liberal judicial activism on everything from gay marriage to civil-justice issues.  The people of Nevada just overwhelmingly rejected a ballot measure that would have replaced their system of judicial elections with a form of the Missouri Plan, despite Justice O’Connor’s aggressive and unethical efforts on behalf of the campaign.  In Missouri, Kansas, Tennessee, Oklahoma, and Iowa, there are ongoing and intense public debates over whether to amend or simply scrap the Missouri Plan altogether.  And in Alaska, Kansas, and Iowa, Jim Bopp has filed lawsuits on behalf of citizens who believe it is unconstitutional to give lawyers the dominant role in choosing judges.  (See here for Professor Nelson Lund’s excellent analysis of the constitutional issues.)

So who does like it?  I’ll address that in Part II.

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