Saturday, February 26, 2011

The "New and Improved" -- and make no mistake, just as activist -- Iowa Supreme Court

This week, Iowa Republican Governor Terry Branstad appointed three new members to the state Supreme Court.  From among the nine finalists, the governor selected two state judges and a private attorney.  All were white.  All were male. Notably, these justices are filling the seats vacated by the three justices who were not retained by the Iowa electorate after their controversial ruling on gay marriage.  

To my mind, the biggest question raised by these choices is the complete lack of judicial diversity on the Supreme Court, and what that foretells for the future of the state.  The message is also clear: judicial diversity leads to bad, activist rulings, and when that happens, we must go back to our roots.  To our white, male roots.  

Much can be said about the Governor's choices.  But the one thing that caught my eye was the governor's explanation for his choices: “My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers.” 

These words echo the words of former president George W. Bush, who promised to nominate judges who were "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas." This was, is, and will always be a canard.  This is part of the general mythology to which we have grown accustomed.  What conservative judges do, we call strict constructionism, faithful legal interpretation, and respectful of separation of powers.  In a word, we call it restraint.  Liberal judges, on the other had, are leading us straight to the gates of hell.

This is all so silly yet so powerful at the same time.  If you were crafting a constitutional mythology, I don't think you could do it any better than this.  

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