Date of this Version
Court Review, Volume 46, Issue 4, 118-128
The 2010 Iowa judicial elections were, as former Arkansas Governor Mike Huckabee said soon after, of an “historic nature,” likely “one that . . . will give legs to a larger movement over the next few years.” The election he referred to, in which Iowans voted against retention of three justices who had participated in their Supreme Court’s unanimous decision to uphold gay marriage, surely is one of the most significant judicial elections ever. It also was the highest-visibility judicial election since 1986, when Californians voted down the retention of Chief Justice Rose Bird and two of her colleagues.
Even before election day, the 2010 judicial election cycle was unique: never before had so many states had organized opposition to a justice up for retention—this time, six states. Although only in Iowa was the opposition intense and ultimately successful, the widespread efforts and the result in Iowa may well open a new era of heat in judicial elections of all types—retention-only as well as partisan and nonpartisan.
Notably, though, in the five states other than Iowa with opposition to judges in 2010, there was less support for retention, on average, than had been the case from 1998 to 2008. Support also declined even in states without organized opposition to retention.
Unlike the impact of the 1986 California event, which had occurred because of Bird’s consistent reversal of scores of capital cases and had little if any ripple effects, this time several specific reasons point toward more challenges to incumbent judges. Not only are more contests likely, but well-informed observers fear that judges’ actions on the bench may reflect increased concern with possible public reactions to decisions.
In the remainder of this article, I will place the Iowa retention- election contests into context regarding how judges are selected, focusing on recent changes. I will then review what happened during the Iowa election itself. With that background in place, I will offer some personal opinions—first, regarding the Iowa campaign itself; next, regarding the likely impact of the Iowa election and its result; and last, regarding steps that might be taken to reduce the likelihood of more attacks on judges.