07/06/23

An insidious word has been worming its way into America’s political lexicon. It’s the loaded word “unelected.”

It’s a useful word. When appointed public officials take steps with which someone disagrees, it’s increasingly common to hear them tarred with being “unelected.”

Well, duh.

Exactly how should the millions of government employees in America assume their positions? Should we be electing the federal cabinet, or the directors of the thousands of federal and state agencies, or the postal carriers, or military personnel?

It’s a safe bet that an appointed public employee who makes a controversial decision will be labeled “unelected” by someone on the opposing side, as though doing his or her job is somehow beyond the bounds of legitimacy.

This past week it was judges’ turn in the barrel. The Iowa Supreme Court, by a vote of 3 to 3, let stand a previous permanent injunction against a law, adopted in 2018 by the Legislature and signed by Governor Reynolds, that would have made abortions in Iowa illegal after six weeks of pregnancy: the so-called “fetal heartbeat” law.

Consequently, Iowa abortions remain legal up to 20 weeks.

Bob Vander Plaats, President and CEO of The Family Leader, an Iowa-based conservative Christian ministry, called out “unelected judges” twice in an op ed in last Sunday’s Des Moines Register. (Vander Plaats is a former Jefferson high school business teacher and basketball coach.)

One of his references was to situations where, he said, “unelected judges rule as supreme legislators”. The other was to “unelected judges who have gotten too big for their britches.”

Vander Plaats, of course, has every right to disagree with the opinion of the three Supreme Court justices who ruled, on procedural grounds, against the six-week abortion restriction. That’s not the issue.

Instead, when he implies that because they serve through the governor’s appointing procedure, rather than election by the voters, their decision is less than valid, he’s on thin ice. For several reasons.

In the first place, ALL the current Iowa Supreme Court justices are appointed by the governor, not just the three with whom he takes issue. And as a matter of fact, they are all Republican appointees. If the decision by the three justices with whom he disagrees is questionable because those three are “unelected,” how about the three who voted as Vander Plaats wanted? They also are “unelected.”

In the second place, it’s misleading to say that Iowa judges are unelected. Just ask the three justices of the Iowa Supreme Court who were ousted in 2010 by a Vander Plaats-led campaign against them following the court’s unanimous ruling the previous year that same-sex marriages in Iowa are legal.

Those three justices were voted out of office during their retention election. Iowa law, while it provides for ongoing appointment until age 72, requires all Supreme Court justices to stand for retention every eight years (other judges every six years). The Family Leader disagreed with the court’s opinion on same-sex marriage, and its campaign successfully defeated the three when their turn for a retention vote came up.

Those three were the only victims of The Family Leader’s wrath. The other four justices, who had also supported same-sex marriage, all retained their seats in subsequent retention elections. Apparently Iowans had no problem with their position after the initial kerfuffle.

(Same-sex marriage has remained legal in Iowa, and the U.S. Supreme Court made the same decision a few years later. It’s now the law across the land.)

And in the third place, the management of government activity by appointees is totally constitutional, at both the federal and the state level. In the words of Article Two, Section Two of the U.S. Constitution:

The President “shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law . . .” The Iowa Constitution grants our Governor similar powers.

If someone has a problem with a decision or activity of a government appointee, the individual to blame is the one who did the appointing. Harry Truman’s laconic “the buck stops here” says it best. Vander Plaats would do better to attack those responsible for the current Supreme Court justices: Republican Governors Branstad and Reynolds, who appointed them all. ♦