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Sandra Day O’Connor Supports Iowa Pro-Gay Marriage Justices

by Kilian Melloy
Thursday Sep 9, 2010
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The conservative right has made a habit of labeling judges who hand down verdicts with which they disagree "judicial activists," while remaining silent on controversial decisions that align with conservative ideology. Among the weapons conservatives have brought to bear on judges labeled "activists"--especially judges who have found that anti-gay laws are unconstitutional--have been threats of impeachment.

But the state Supreme Court justices who struck down a state law there denying same-sex families the right to marry face another challenge, which is now being exploited by the anti-gay right. Three of the seven justices on the Iowa Supreme Court bench are facing "retention votes" this year--and conservatives, most notably former Republican gubernatorial candidate Bob Vander Plaats, are using the unanimous decision that opened the way for gay and lesbian family parity against them.

If the courts are meant to be a buffer against unjust laws and the sometimes unjust whims of the majority, the idea that a judge or justice might face retaliation at the ballot box for an unpopular ruling may strike some as running contrary to the best interests of the judicial system. Indeed, the targeting of the Iowa justices has brought together a group of distinguished legal scholars and jurists who have spoken out in support of the beleaguered justices, and criticized Iowa’s system. Among them is Sandra Day O’Connor, who, before her retirement, sat on the bench of the U.S. Supreme Court.

So passionate is the 80-year-old O’Connor about the issue that she serves as the chair for the O’Connor Judicial Selection Initiative, a group dedicated to reforming judicial systems in places like Iowa where worry about elections threatens to compromise judicial integrity by turning jurists into what O’Connor has called "politicians in robes."

A Dec. 23, 2009, New York Times article on the Initiative said that there is such resistance to reforming state judicial systems in the 20 states where judges are elected to the bench that it had been a decade and a half since any state where that system had been in place switched to "commission-based system" where judges would not be tempted to pander for votes, and where politicians and PACs could not seek to punish judges for tipping the scales of justice. The article noted that resistance to such changes in the system often came from businesses.

But the issue has gained traction, and not just in Iowa; the Times reported that Nevada and Ohio were mulling a switch away from requiring judges to face the electorate.

Omaha news station KETV, an ABC affiliate, reported that O’Connor spoke in Des Moines on Sept. 8. O’Connor, who spoke for about 10 minutes, noted that in states where judges are elected to the bench, their campaigns cost more than those of congressional candidates.

Vander Plaats was up-front about the role that money plays in judicial elections. Though he said that his hoped-for war chest of $1 million had not materialized, Vander Plaats added that, "We’re going to have the money and the resources to run an effective ground campaign, as well as an effective television campaign," according to a Sept. 8 Associated Press article.

But changing how Iowa appoints and retains its judges would involve the very same process that anti-gay activists seek to rescind marriage parity in that state: an amendment to the Iowa constitution. Forty-eight years ago, the state’s current system was voted in via ballot initiative.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor, writing about film, theater, food and drink, and travel, as well as contributing a column. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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