Will of voters should not guide judges
December 08, 2010
Posted on desmoinesregister.com:
"Terry Branstad [Iowa's governor-elect] suggested Monday new members of the Iowa Supreme Court should follow the will of voters who removed three justices in the November judicial retention election.
"If that means choosing judges based on how they will decide civil rights cases, that is the wrong lesson to draw from the election: Judges should never be discouraged from protecting the rights of minorities based on popular opinion of the electorate.
"The Bill of Rights in the Iowa Constitution - as in the federal model - was created to protect minority rights from the tyranny of the majority. If Iowa judges put their fingers into the wind on such cases, as Governor-elect Branstad seems to suggest they should, we might as well replace courts with public referendums.
"Though the judicial retention election is over, questions about judicial independence still loom as the State Judicial Nominating Commission prepares to interview candidates to replace the three justices. It is almost certain that process will not be complete until after Branstad takes office in mid-January. Thus, his views on the role of judges in a constitutional government are important.
"Branstad's comments at a forum at the Iowa Capitol Monday are not reassuring. He said the Iowa Supreme Court 'made a tragic mistake in their decision on marriage equality.' He said the nominating commission should keep in mind that 'the voters overwhelmingly rejected three members of the Supreme Court, and I think they want a change in the philosophy of the court.' He said Iowans want judicial restraint. One translation: No more rulings like the one on the freedom to marry.
"Branstad said he would not ask nominees about their views on marriage for same-sex couples, but he would ask them about the principle of separation of powers between the legislative, judicial and executive branches. That's fine, except that based on his comments Monday, Branstad himself does not appear to understand the distinction: 'They need to respect that on issues like this, it's really the Legislature that has the responsibility,' he said Monday, 'and if the Legislature has made a mistake, the courts can indeed send it back to the Legislature to be corrected.'
"That presumes it would be possible to fashion a law limiting marriage to a man and a woman that would satisfy the equal-protection clause of the Iowa Constitution. There is nothing preventing the Legislature from attempting that impossible feat, but until it does, the old law has been voided by the court."
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