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Civic Skinny

September 20, 2012
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Backers of Justice Wiggins gear up; More and more Iowans back gay marriage

Bob Vander Plaats is firing up his campaign to throw out another Iowa Supreme Court justice this fall, but this year things are different. Iowans’ views on the flashpoint issue of gay marriage have changed dramatically, and supporters of the court are willing to get into the fray.

The stakes are high — not just for Dave Wiggins, the justice who is the target of the conservatives and evangelicals in this year’s retention election — but for the future of the court that has guaranteed freedom and equality for Iowans for nearly 175 years.

And, indeed, for the future of the state itself.

This fall’s vote will determine whether the 2010 vote to throw out three justices was an aberration — or a turning point in Iowa history.

If the Vander Plaats forces win, future retention elections will be based on politics, not merit, changing the tone and the rhythms of the state, court watchers agree. If they lose, the effort will be dead by the time the next retention election comes up in four years, they also agree. Merit will prevail.

In April of 2009, the seven justices on the court unanimously ruled in Varnum v. Brien that the Iowa constitution guarantees same-sex couples the right to marry in civil ceremonies. A month or so later, a poll showed that Iowans opposed that ruling by a 58-37 margin. The same poll showed that Iowans opposed gay marriage by a 55-39 margin. A year later, Iowans refused to retain the three justices who were up for a retention vote, marking the first time any Supreme Court justice lost a retention vote.

But that was then.

Now, Iowans approve of the Varnum ruling by a 48-43 margin. And they support same-sex marriage by a 48-44 margin. Those are huge turnarounds. What’s more, Iowans have an overwhelmingly favorable view of the state supreme court and strongly believe the court should be free from political pressure as it hands down rulings.

Those are the findings of a new survey taken for Justice Not Politics, a group formed to support the retention of the four Supreme Court justices who will be on the ballot in November.

The findings, made available to Cityview, indicate opponents will have a much tougher time deposing any justices this fall — if the court’s supporters can get out the vote. But if the supporters can’t get out the vote, Wiggins — and perhaps others — are in trouble.

Iowa’s judges face a statewide, up-or-down retention vote in the year after they are appointed by the governor and every eight years thereafter. Anger over the Varnum decision, fueled by an expensive political campaign by conservatives and evangelicals and orchestrated by three-time gubernatorial loser Vander Plaats, led to the ouster in 2010 of Chief Justice Marsha Ternus and Justices David Baker and Michael J. Streit. The vote was about 54-46 against retention.

The justices and their supporters, perplexed by the sudden politicalization of the retention election, did little to fight back.

But that was then.

Now, backers of retention are organized. Justice Not Politics is a bipartisan coalition co-chaired by former Democratic lieutenant governor Sally Pederson and former Republican lieutenant governor Joy Corning. It aims “to counter the effort of extremists from hijacking Iowa’s courts.” Its affiliate, the Justice Not Politics Action Fund, was set up last week “to tell voters to vote yes,” says Pederson, who chairs that fund. It is raising several hundred thousand dollars to get its message out — and to get its allies to the polls.

They start from solid ground.

If the retention vote were held today, Wiggins would be retained, the new survey indicates. Iowans view him more favorably than they view legislators, President Barack Obama, Republican presidential candidate Mitt Romney and — by a large margin — Vander Plaats, whose negative ratings are up 20 points in the past two years. (Also on the ballot are the three men appointed to replace the ousted justices, and Justice Not Politics is working for their retention as well, though they are less controversial.)

Wiggins has a 10-point edge — 34 to 24 — among those polled last month by Greenberg Quinlan Rosner, a Washington firm hired by Justice Not Politics. The poll of 600 likely voters was conducted Aug. 23-26 and has a margin of error of plus or minus four points. But more than 40 percent of the respondents didn’t know the retention issue would be on the ballot, and 40 percent — presumably most of the same people — didn’t know how they’d vote.

It’s that group that’s up for grabs and that both Vander Plaats and Justice Not Politics want to enlist. Vander Plaats next week will go on a four-day, 17-town “No Wiggins” bus tour to drum up support against Wiggins. (The Iowa bar association is thinking of following the Vander Plaats bus with its own pro-Wiggins bus.) If Wiggins stays, the Vander Plaats people say, it’s all but the end of the world.

“If activist judges feel they can redefine marriage in Iowa, then none of our sacred traditions and rights are safe. All of our freedoms and rights concerning our property, the 2nd Amendment, the protection of human life, educational choices, free enterprise, limited government and more are vulnerable if our Supreme Court is controlled by activist judges like David Wiggins,” the Iowans For Freedom website ( proclaims.

Justice Not Politics will seek to reinforce the views of the pro-court voters, to get the attention of Iowans who have switched their position on same-sex marriage, and to sway the undecided. (websites:, Independent voters have had a massive change of mind in the past two years — 27 percent favored the Varnum decision in 2009, 51 percent favor it now — and are likely targets. Moderate Republicans also will be targeted, probably through social media and direct mail.

If those people vote, Wiggins wins. If they don’t, he loses.

Wiggins himself is in an odd position. If he fights back, he is conceding the court has become political. If he doesn’t, he is letting the debate be one-sided. Politics “has no business in the courts,” he wrote in Sunday’s Des Moines Register. “I do not want Iowa to end up like states with highly partisan courts. Iowa is better than that.” That appears to be why Justice Not Politics has jumped in — to campaign, to debate, to publicize, but to keep Wiggins above the fray.

There are more than a few ironies and oddities in the fight. The latest poll asked people how they voted in the 2010 retention election. About half said they voted to retain, about a third said they voted to oust. In fact, the three justices were voted out by about 54-46 margins.

And while religious groups are prominent in the anti-court, anti-Varnum move, the Varnum case itself is as much about religious freedom in Iowa as it is about same-sex marriage, making clear that the ruling refers to civil marriage. “Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation,” the court noted. And it reaffirmed the right of religious institutions to refuse to perform same-sex marriage. But it also noted that “state government can have no religious views, either directly or indirectly, expressed though its legislation. This proposition is the essence of the separation of church and state.”

The election is Nov. 6. No one is saying it won’t be close. ...

The United States Senate last week confirmed Stephanie Rose to be a federal judge for the southern district of Iowa, which includes Des Moines. The vote was 89-1, somewhat remarkable in this era of political nastiness and a tribute to the political skills of Sen. Tom Harkin. It is noteworthy for a couple of other reasons: Rose becomes the first woman to sit on the bench in the Southern District, and she becomes the 72nd woman confirmed for the federal bench during the presidency of Barack Obama — a record for any term of any president. ...

The United States Supreme Court next week will consider whether to hear the appeal of Sholom Rubashkin, who received an astonishing 27-year sentence from Cedar Rapids federal judge Linda Reade after being convicted of financial crimes following the May 2008 federal raid on the Agriprocessors kosher meatpacking plant he ran in Postville.

Many people, including former attorneys general and FBI directors and federal judges, think the penalty was particularly harsh and think Reade wrongly worked too closely with federal agents and prosecutors before the raid. Even though the Supreme Court grants only about 80 of the 8,000 or so petitions it receives seeking review of decisions, there’s believed to be a pretty high chance it will take the case. ...

That poll commissioned by Justice Not Politics put President Obama ahead of Mitt Romney, 49 to 47, in Iowa. That was before the two political conventions. It also asked Iowans to rate people and institutions on a scale of 0 to 100, with 100 being a “very warm, favorable” feeling and zero being a “very cold, unfavorable” opinion. The Iowa Supreme Court ranked highest with a 57 average; Vander Plaats was lowest at 38.

Some others: Obama 48, Romney 45, Wiggins 49, Chief Justice Mark Cady 54, Terry Branstad 51, the legislature 48.

Update: Cityview reported a couple of weeks ago that Vander Plaats was moving to Des Moines from Sioux City. The sale now has been recorded. He paid $400,000 for a four-bedroom, three-bathroom, two-fireplace, four-garage home at 2105 N.W. Gabus Drive in Grimes. The seller was Jeff Vaage, the very successful coach of the Drake women’s tennis teams in the 1990s.

And the Branstads are living temporarily in an apartment in the East Village while mold is removed from Terrace Hill. CV

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