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In Iowa, judicial races turn into big money, big stakes affairs

By Bill Mears, CNN Supreme Court Producer
  • Iowa has become the center of a debate over whether judges should have to face voters
  • "We want impartial judges" not beholding to campaign financers, one side says
  • "It's just incredible" that some would want to take the vote away from citizens, others say

Des Moines, Iowa (CNN) -- Three experienced officeholders seeking re-election in Iowa have refused to campaign to keep their jobs, but that has not stopped both supporters and opponents from launching a partisan, high-profile effort, complete with television and radio ads and a touring campaign-style bus.

The candidates are Iowa Supreme Court justices, and their ruling on a hot-button issue has become the flash point for a national debate over how judges should be selected.

The idea of judges trolling for campaign cash and glad-handing voters may seem unusual to some, but it is the law in 39 states that have some form of contested system for top judges.

Only 11 states and the District of Columbia follow the federal system of appointing their judges for life tenures. A mix of states rely on a merit selection system -- initial appointments by the governor followed by retention elections, which are simple up-or-down votes without opposing candidates. The idea is to ensure gross misconduct by a sitting judge will not be tolerated.

Reform advocates remain deeply at odds with those who believe judges should face elections just as legislators and governors do.

"The current election landscape in most states is a system that invites corruption," said Rebecca Kourlis, founder and leader of the Institute for the Advancement of the American Legal System. "Judges are under constant threat from big-money and interest groups.

"We want impartial judges, for people to walk into a courtroom and feel confident they will get justice without bias, and not feel judges are beholden to a particular constituency, or are afraid of deciding a certain way for fear of losing their job in an election."

On the other side is Gary Marx, executive director of the Judicial Crisis Network, a leading conservative legal organization.

"It's just incredible to think that someone -- in this year of all years -- would be pushing to take away the involvement of the citizens and the voters and to move to a system of elite lawyers picking judges behind closed doors," he said.

The political and financial stakes are enormous in what was once the forgotten sideshow of state elections. The races are attracting attention from business groups dueling with trial lawyers over multibillion-dollar punitive damage awards, and ideological groups sparring over abortion and immigration reform.

With civil court dockets nationwide growing at a record pace, judges increasingly are taking on contentious social and financial issues.

A new study by the Brennan Center for Justice found $200 million in donations spent by candidates on competitive state supreme court races in the past decade -- double the amount from the 1990s. Hundreds of millions more have been spent by independent outside groups seeking to influence judicial contests.

A U.S. Supreme Court ruling in January opening up such "corporate" spending by businesses and unions is likely to be increasing the campaign arms race on the state level.

The issue has a high-profile figure in Sandra Day O'Connor, a retired Supreme Court justice, who in recent years has become a tireless activist to ensure an independent judiciary.

"We've seen massive problems now with the election of state court judges from special interest groups that want to affect the election," she told CNN. "That was the reason why we went to elections in the first place, to get rid of special interests. But now they've come back with money, and so we have to re-examine again how we need to fix that."

Iowa and "that issue"

Voters here have been getting and eye- and earful in recent months from competing campaign ads focused ostensibly on three high court justices seeking retention. But partisans on both sides say the November 2 election is really about what they each call "that issue"-- same-sex marriage.

The seven-member state high court in April 2009 unanimously ruled there was no compelling governmental interest in denying citizens marriage licenses based on their sexual orientation. Gay and lesbian couples in the Hawkeye State conducted weddings soon after. Five states and the District Columbia currently allow same-sex unions, but the debate has had especially intense resonance here in the Midwest.

A group called Iowa for Freedom this summer launched a campaign to defeat three justices -- Marsha Ternus, the chief justice; Michael Streit; and David Baker. Two were initially appointed by a Republican governor, the other by a Democrat. If they are ousted, that would not change the ruling, but the state legislature is seeking a constitutional amendment and voter referendum to someday overturn it.

Iowa judges are chosen by the governor from a pool of limited slate of candidates nominated by a blue-ribbon citizen panel. Jurists then face periodic retention elections for no more than eight years on the high court.

Iowa for Freedom is funded by an out-of-state conservative Christian organization called American Family Association. It began airing ads last month, warning voters about "liberal, out-of-control judges ignoring our traditional values and legislating from the bench, imposing their own values on Iowa."

"If they can usurp the will of voters and redefine marriage, what will they do to other long-established Iowa traditions and rights? ... Send them a message: vote no on retention of Supreme Court justices," the ads say.

American Family Association has spent at least $60,000 on the justice removal effort in Iowa, according to state financial reports as of mid-September. That total did not include money for the TV ads.

Another group, the National Organization for Marriage, says it has spent more than $200,000 on statewide ads critiquing the judges.

The organization has launched what it calls the "Judge Bus Tour"-- a brightly decorated recreational vehicle crisscrossing the state this week. Supporters say it will make 20 stops, travel over 1,300 miles, and pass through 45 of Iowa's 99 counties.

It has expanded its message in recent days, urging the removal of all Iowa judges on the ballot to send a message about the current judicial selection system.

That effort prompted a counter-movement by several groups seeking to retain a system that has been in place since 1962. Among them is Fair Courts for Us, billed as grass-roots and bipartisan.

"The politics surrounding judges has gotten extremely ugly here," said co-chair Arthur Neu, a Carroll County attorney and a former Republican lieutenant governor. "I'm concerned these outside groups are using us as the place to launch something bigger -- to take out judges in Iowa and then intimidate jurists elsewhere. That's why so much money is being poured into these races."

Neu said removing so many Iowa judges all at once would undermine the court system and public safety.

Courting the nation

Across the United States, more than two dozen states have judicial elections this cycle. According to the non-partisan Institute for the Advancement of the American Legal System, 37 sitting state justices face up-or-down retention elections in 15 states. In 11 states, 18 seats have multiple candidates.

In Nevada, a ballot initiative, Proposition One, would make the state the first in 15 years to switch from voter-based to merit-based selection of judges. The Institute for the Advancement of the American Legal System's Kourlis -- herself a former Colorado Supreme Court justice -- had pushed the referendum.

"This vote for Prop 1 would provide the right balance between independence and accountability," she told CNN. "If approved, it would be a rallying cry for other states considering similar revisions. We know the merit selection system used by many states is not perfect, but it is a tested, proven, reasonable alternative. The idea of smoke-filled rooms where special interest lawyers are running the show in the initial selection system is just not correct."

Kourlis said such methods also have accountability systems that include independent judicial performance evaluations as well as retention votes. She calls it a transparent, unbiased tool for the public to essentially "judge the judges" on their records. Her group is working with O'Connor on various judicial reform efforts.

But that has not deterred opponents from taking the issue directly to voters. Clear the Bench Colorado seeks to unseat three state supreme court justices. In Kansas, a justice seeking re-election has come under attack from anti-abortion activists.

And in Illinois, the newly named chief justice who ruled this year against limits on medical malpractice claims is now facing criticism from business groups. Thomas Kilbride has no opponent, but needs 60 percent of the retention vote to keep his seat. That race has attracted nearly $3 million in spending from both business interests opposing Kilbride and labor unions supporting him. It has become the second most expensive retention campaign in the United States, which alone in the world has voters choosing judges.

Those who back direct elections for all state judges say money is not the problem.

"It has never been documented that judges who raise money for election campaigns are becoming more 'corrupted' by the process than judges who are chosen behind closed doors by committee," said Marx of the Judicial Crisis Network.

He said the movement to change the judicial selection system in Nevada is being directed in part by liberal political activist and billionaire George Soros.

But Justice O'Connor worries public confidence is being eroded, and that courts can be unduly influenced.

"It has the effect of turning judges into these politically elected figures in arms races, if you will, by people with the means to support them," she told CNN recently. "And what the framework of our Constitution tried to achieve when they wrote that Constitution back in the 1700s was an independent federal judiciary."

O'Connor wants that framework applied to state judicial races as well.

In Iowa and elsewhere, judging the judges has become increasingly divided, and increasingly expensive.