Back of the Ballot

When I first moved to Iowa in the early 1980’s to begin law school at the University of Iowa, I was delighted to learn several things about our fair state, including the incredibly fair and even- handed way that Iowa handled both legislative redistricting and judicial nominations and retention. I grew up in Wisconsin, where judges at every level are elected. Even as a teenager, I felt it odd to see pickup trucks festooned with signs for county judge candidates in the middle of a Fourth of July parade. I wondered how I would decide who to vote for in judicial races when I became old enough to vote. Iowa’s system seemed so much better. A commission made up of lawyers and non-lawyers, mostly elected by lawyers, would interview candidates for judicial appointment and send a list of potential nominees to the governor to choose one for appointment. Those appointed to be judges would be up for public retention votes every so many years on a rotating basis.

 

The system seemed to work really well. Before the election, the Iowa State Bar Association would share information about lawyers’ views as to the qualities of the judges on the ballot, including their professional competence, knowledge and application of the law, perception of factual issues, attentiveness to arguments and testimony, and management and control of the courtroom. In the many years I’ve been voting in Iowa, I can only recall one time when I voted not to retain a judge. This was a district court judge who, based on my own observations, did not have the requisite skills and courtroom demeanor to continue being a judge. A majority of voters agreed, and the judge was removed from office.

 

Of course, in recent years Iowa Republicans, (who cannot seem to leave any successful, even-handed Iowa approach alone, e.g. public education and the AEA’s), have changed the system to give the governor an advantage on the nominating commission through appointment of the majority of its members. In other words, they’ve politicized the process, thereby damaging its reputation for fairness and equity.

 

That brings us to this year’s ballot, and the judges up for retention. I don’t know of any reason not to vote to retain the district court and court of appeals judges listed on this year’s ballot. Several of them I know to be outstanding judges. I will vote to retain them. However, I am going to vote not to retain Supreme Court Justice David May. From the opinions I’ve read he appears to be a judge who applies the concept known as “Originalism” in analyzing disputes before the court. I refer to it as a “concept” rather than a “legal theory” as its very creation was a political act and its application in appellate decisions across this country has shown that it is being used by the judiciary to impose partisan political outcomes. We’ve seen it, time and time again, particularly at the United States Supreme Court in cases in which fundamental rights and freedoms were at stake. Of course, its most notorious recent manifestation has been the overturning of Roe v. Wade, but its application is rampant in recent Supreme Court opinions involving the Second Amendment, religious liberty, regulation of corporate polluters and others. Unfortunately, this plague is present in our state courts as well.

 

“Originalism” is the notion that we should interpret the constitution, at both the federal and state level, limited to what was intended by the drafters of the Constitutional language or by what was the most common understanding through some unstated percentage of our nation’s or state’s history. It places judges in the position of having to be historians and results in outcomes determined through discerning the intent of men who, in the case of the U.S. Constitution, were born 300 years ago. I don’t know about you, but I think the world has changed quite a bit since the Constitution was adopted in 1787. I absolutely revere the founders of this nation. They put their lives on the line to create the world’s first and most enduring democracy. We should honor them. But compared to what we know today, their understanding of science and of human skills and possibilities was extremely limited. However, I am certain that they knew science and human understanding would continue to grow past their lives and it is my guess that men such as James Madison, John Adams, George Washington and Thomas Jefferson would be heartbroken to learn that in 2024 we define our understanding of the meaning of liberty based upon their now antiquated understanding.

 

The creation of the concept of “Originalism” was initiated in the early 1970’s by Robert Bork, who you may recall lost his bid for a seat on the Supreme Court when the Senate voted not to confirm him after his nomination by President Reagan. He and other conservative legal scholars thought the Supreme Court had been overstepping its bounds in its decisions in the 1950’s and 1960’s expanding personal liberty. He wanted courts to limit their analyses to the words in the founding documents, as the drafter’s intended them at the time. Looking at the intent of the drafters, and at history, should be the beginning of the analysis, not its be-all and end-all. After all, James Madison never heard of the telegraph, much less the telephone, the Internet, or TikTok for that matter.

 

That brings us to Justice May. The opinions he has written or joined show that he is a practitioner of this political form of analysis. He was one of the four justices who upheld Iowa’s 6-week abortion ban earlier this year in a narrow, 4-3 decision. Also earlier this year he relied on an “Originalism” analysis in holding that the right of confrontation means that government cannot act to shield child victims of physical abuse from having to testify in court in the presence of the defendant – the person who was being criminally prosecuted for allegedly abusing them, even when experts testified the children would be further traumatized by having to testify in the defendant’s presence. While I agree we need a right to confront our accusers in criminal trials, this ruling is outrageous and inconsistent with modern knowledge and understanding of the needs of children subjected to abuse Justice May referenced how children were viewed in the mid-1800’s in finding that society, then, did not wish to relieve them of this burden. For gosh sakes, our nation, in fact this world, has so evolved since then in its view and consideration for the needs of children – well past the days when they were viewed as little, juvenile laborers.

 

In the abortion case, the majority opinion he joined held that the right to abortion is not a fundamental right in Iowa as, for most of its history, Iowa has not permitted it. But until just a few weeks ago, Iowa had permitted abortion for over 51 years! That’s about 30% of the time Iowa has been a state, and it’s the most recent 51 years. I would ask Justice May – so, what percentage of our history would tip the scales? How do we know what percentage you would apply in a given case? Does it differ, case to case? Of course, this is all rather ridiculous and wrong. Another Republican appointee to the Iowa Supreme Court, the late Chief Justice Mark Cady, wrote in his 2018 majority opinion in which the Court found the right to decide whether to continue or terminate a pregnancy to be a fundamental right, citing language from earlier Iowa cases, “The Iowa Constitution is a living and vital instrument. Unlike statutes, our constitution sets broad general principles. Its very purpose is to endure for a long time, and to meet conditions neither contemplated nor foreseeable at the time of its adoption.”

 

As for me, I will no longer vote to retain any judge who I learn is applying “Originalism” in analyzing cases. It is a political tool and has no place in our judicial system as a sole determinant of anything. It is neither a fair, nor a just means of determining our rights and liberties, which we Iowans prize and strive to maintain.