BILL MOYERS: In case you haven’t noticed, something’s afoot with our judicial system. Across the country, large sums of money – much of it secret – are pouring into the races for high court judges. And in several states, partisan groups with funds from undisclosed sources are out to punish justices for rulings the partisans don’t like.
Take Iowa as the prime example. The state Supreme Court there is considered one of the fairest and most impartial in the country. Justices are chosen on merit, through a non-partisan nominating process long respected by both parties. But two years ago, Iowa conservatives knocked off the bench three state Supreme Court justices who were part of a unanimous decision upholding same sex marriage on constitutional grounds. Now those conservatives are trying to remove a fourth justice who had joined in that decision.
AD NARRATION: Iowa voters made history last election holding activist Supreme Court judges accountable for ignoring our will and imposing gay marriage. Now we must hold David Wiggins accountable for redefining marriage and legislating from the bench. Only 63 percent of his peers support his retention. In school, that’s a D minus. If David Wiggins can impose his liberal values and redefine marriage, many of our Iowa traditions and rights are at risk. Hold David Wiggins accountable. Vote no on Wiggins.
BILL MOYERS: Although that ad refers to “our Iowa traditions,” it was produced by the National Organization for Marriage based in Washington, D.C.. Most of the money spent to unseat the three judges in 2010 came from outside the state. And this year, in their crusade to turn out Justice David Wiggins in November, Iowa conservatives have called in some more help from outsiders. Including a state-wide bus tour.
GREG BAKER: I’m Greg Baker, I’m the Executive Director of Iowans for Freedom. We appreciate you all coming out today to help us kick-off the “No Wiggins” bus tour. I’m sure we’re all excited to vote no on Judge Wiggins, is that right?
GREG BAKER: Yes.
BILL MOYERS: Bobby Jindal is Governor of Louisiana.
BOBBY JINDAL: You know, I don’t have any problem with Justice Wiggins, opposing liberal views. I don’t have any problem with him wanting to espouse his views on marriage or whatever else he chooses to ride on. But if he wants to make law he needs to do that by running for the legislature, not from the bench of the Supreme Court of the great state of Iowa.
BILL MOYERS: Rick Santorum is the former United States senator from Pennsylvania who won the Iowa caucuses in January before losing the Republican nomination to Mitt Romney.
RICK SANTORUM: The irony of a group of judges taking the one bulwark of freedom, the constitution, to use it to destroy the second bulwark of freedom, virtue, is truly a corrupt act. The people of Iowa have an opportunity to say no. We are no longer going to stand by and let the elites, who believe they know best how to write the laws and change the constitution, run roughshod over the rights of people.
BILL MOYERS: Iowa is often a bellwether state for national politics. So when out-of-state partisans and out-of-state money combine to try and take down and take apart a highly esteemed court in the heartland, you never know whose next. That’s why we wanted to talk to a couple of Iowans who have organized the non-partisan group Justice Not Politics. They’re fighting to protect the independence of their Supreme Court against efforts to vote justices off the bench.
Sally Pederson is a Democrat and the state’s Lieutenant Governor from 1999 to 2007. She's past chair of the Iowa Democratic Party and a longtime advocate for children and adults with autism.
Joy Corning is a Republican and former school teacher. She was one of her party’s leaders in the state legislature before being elected to two terms as Lieutenant Governor from 1991 to 1999. Both have been inducted into the Iowa Women’s Hall of Fame.
Welcome to you both.
SALLY PEDERSON: Thank you, Bill.
JOY CORNING Thank you.
BILL MOYERS: So, let's get something basic down. What's unique about the way Iowa chooses your state supreme court judges?
JOY CORNING We have a merit system. We have a judicial nominating committee. And that is composed of seven members appointed by the Iowa Bar Association, seven members that the governor appoints. And it is chaired by the senior supreme court justice. They then interview people who have applied for these positions and recommend three people to the governor. And then the governor makes the decision. And this is a non-partisan commission.
BILL MOYERS: And I understand this came about because 50 years ago voters in Iowa amended the constitution to remove partisan politics from that selection process. Is that right?
SALLY PEDERSON: That's exactly right. I think that people in Iowa were concerned that there was going to be politics and money in the court system and in the way that judges were selected. And so, they made this a constitutional amendment. That means it had to be passed by two consecutive legislative sessions and then it went to a vote of the people. So, this was very important to the people of Iowa. It's in our constitution. And we want to keep it that way. We don't want to change a system that's kept money and politics out of our courts for 50 years.
BILL MOYERS: So, what's happening now?
JOY CORNING Well, when the decision came down from the Supreme Court about same-sex marriage, there then began to be opposition to this particular ruling.
BILL MOYERS: So, there was an outcry when those judges, it was a unanimous decision on the court--
JOY CORNING It was, yes.
BILL MOYERS: -- to uphold marriage equality, right? But they didn't accept that. They didn't like that decision, right?
JOY CORNING Correct. They did not and started a process then of telling people that they should vote against the retention of the justices not for the reasons that you should vote against, say, malfeasance in office, incompetence, that sort of thing, but merely because of this one decision.
SALLY PEDERSON Really, what the court said was that the government cannot discriminate against you based on your race or your religion or sexual orientation or how much money you have. And so, that is really about, you know, equal protection under the law. And we all want to see that in place. We want our judges and our justices to base their decisions on, you know, the constitutional law. And that's what they did.
BILL MOYERS: They said in effect--
SALLY PEDERSON: That the government cannot deny rights to people based upon, you know, characteristics.
BILL MOYERS: Including the right to choose your marriage partner.
SALLY PEDERSON: Including the right to love whom you want and have a civil contract that gives you a lot of rights under our state laws.
JOY CORNING And they specifically, in that decision, said, "This is," as Sally said, "a civil right. We are not talking about what churches can decide to do, whether they want to marry people or not. That's a decision, a religious decision for them.”
SALLY PEDERSON: In fact, they reaffirmed religious liberty. They reaffirmed the right in the decision that churches you know, if this is not part of their belief and part of their creed, they have the very right not to do this. This is about our government and about, you know, civil laws. And everyone has to be treated the same under the law.
BILL MOYERS: Why should the rest of the country care about what's happening in the state of Iowa on this issue?
SALLY PEDERSON: This is not an isolated incident. We know that in states across the country, the courts are being attacked. And it's really an effort to get money and politics into this branch of government.
What people would like to do is intimidate judges and make them understand that if they make a decision that's counter to the interests of certain groups, that, that they'll go after them. And they'll see to it that they're brought down, that they're ousted
BILL MOYERS: And raise a lot of money to do so.
SALLY PEDERSON: That's exactly right. In fact, they really want to change our system in Iowa. And instead of having a merit system, they've done a number of things to attack the courts and really overturn our system. I think they'd much rather see that all judges were elected across the country. Then they could control that third branch of government.
You know, two years ago when they were successful in ousting three of these Supreme Court justices who were up for retention, it was money from outside the state. Over one million dollars came into the State of Iowa.
That's big money in Iowa. And, and they were successful. And a lot of people were surprised. They never expected that this would happen in our state. So Justice Not Politics has been in operation since that time. And we're prepared this time to be able to turn that around.
JOY CORNING The “No Wiggins” bus tour went to 15 different communities in Iowa. But we followed up with our own bus tour, giving the real story of why we ought to keep our merit selection process in Iowa and asking people to vote yes on Wiggins.
DAN MOORE: The court and Justice Wiggins did not amend the constitution from the bench. The truth of the matter is, they applied the constitution. The constitution remains the same.
BILL MOYERS: But where were you two years ago? Because they tossed out three of the judges who participated in that decision upholding gay marriage.
SALLY PEDERSON: We got a late start, for sure. And, and we were underfunded. And we didn't have a good message. And we failed. But I think Iowans are awake now to the possibilities of what can happen if you're just sitting back and not doing everything you can to defend your democracy and to defend the system of government that you have.
BILL MOYERS: What did you find out about who was behind this well-orchestrated and well-funded effort three years ago?
JOY CORNING They're out-of-state organizations that gave money to that effort.
SALLY PEDERSON: The American Family Association is one of those organizations.
BILL MOYERS: Which is?
SALLY PEDERSON: Out of Tupelo, Mississippi. They're really a right-wing hate group, they've been identified, as by the Southern Poverty Law Center. And then an organization out of Washington, D.C. that is anti-same-sex marriage. So, they have an agenda. And they're dumping money into Iowa to see to it that if they can turn back these justices in Iowa, it will send a signal to other states. You know, those judges and those justices, you know, better be careful about what kind of decisions they make, because they'll go after them.
BILL MOYERS: Newt Gingrich showed up in the campaign in 2010. Why was he there?
SALLY PEDERSON: Well, that's about presidential politics. And as you know, Iowa is first in the nation with our caucuses. So people who have an interest in running for president, they're there to stir up the social conservatives. They're looking for support and votes in future elections. And I think that's why we had Santorum and Jindal in Iowa. They're looking at presidential politics four years from now.
BILL MOYERS: Joy, you are a Republican. The Republican state party in Iowa has endorsed getting rid of these judges and Justice Wiggins. Has that ever happened before? Has a state executive committee, the state party in Iowa ever said, "We should do this"?
JOY CORNING No. And I was appalled and saddened when I read that statement from the chair of our party, actually voting, asking Republicans to vote against Wiggins. I thought that was most inappropriate. And I know there are lots of Republicans that would not agree with that at all.
Former Governor Ray, former Lieutenant Governor Art Neu, and a number of Republican legislators that I have discussed this with that are all supportive of the retaining Justice Wiggins and our system.
BILL MOYERS: However, your opponents say, in Iowa, the people who want to remove Justice Wiggins as they removed the first three, say they're only doing what the state constitution allows, that the power not to retain a judge on the bench is guaranteed to the people. And that's how democracy keeps justices accountable. That's what they're saying and writing out there, as we speak.
JOY CORNING Well, they have said lots of things in writing that we would disagree with or that we think are untruths.
SALLY PEDERSON: Yeah. But, you know, obviously, yes. Yes, you know, it's on the ballot and people have the right to vote. But they're not electing a judge or a justice. They're just determining whether this justice is qualified to be retained. And a retention vote pivots around whether a judge has done something that shows that they're unsuited to serve or that they're corrupt. It's not about, "Do I agree with their decisions?" because we want them to make decisions, not based on popular opinion, but based upon the law.
BILL MOYERS: But you know—
SALLY PEDERSON: And that's what they're sworn to do.
JOY CORNING In our, this 50-year history of our merit selection system, we have only had four judges that have not been retained in office.
BILL MOYERS: In a campaign, in an election, you stand up for yourself. You defend your position and advocate for your election or reelection. But the judges who were targeted in 2010, and Justice Wiggins who's targeted now, did not and are not actively campaigning in their behalf.
JOY CORNING Well, I think they don't want to politicize the courts.
SALLY PEDERSON: That's exactly right. I mean, this is the very nature of what the, of what the principle is that we're talking about. We don't want our judges and justices to be running for office. And so, they can't campaign. That's part of their code of conduct.
That's why we're doing this campaign, because we want to keep our judges and justices from having to raise money and go out and campaign. In a sense, if they do that, then the very people they take money from, they then, there's at least the appearance that they owe that-- that person or that special interest something.
BILL MOYERS: Justice Wiggins did write an op-ed piece in which he said quote, "I want to keep my job, believe me, but I will not jeopardize the integrity of the Iowa Supreme Court in the process. More important, I hope Iowa Supreme Court justices never have to raise money from political donors to ask for your vote." But haven't the rules of the game changed? And aren't justices expected now to play by the new rules?
JOY CORNING Well, let me tell you what the Supreme Court justices have been doing. They have been holding court around the state at-- in various different locations. And they have been giving lots of talks. I just recently heard Justice Wiggins at my rotary club.
And although he does not say, "Vote for me," he gives more of a civics lesson, I will say. But this is, I think, what some people need to hear, too. But they are trying to be more visible and have more people understand what they actually do.
SALLY PEDERSON: You know, we elect our legislators, we elect our Executive Branch president, governor. If we also have money and politics involved in our courts, then what is safe from just the opinions of the day?
BILL MOYERS: Has the Democratic Party in Iowa taken a stand?
SALLY PEDERSON: No, they have not. And—
BILL MOYERS: Are you disappointed by that?
SALLY PEDERSON: No. I think that's the right thing. I don't think we want a system where the parties start saying, "Yes," to this judge, "No," to that judge. I think that's a terrible thing. Then it's no longer, you know, then it's politicized. It might as well be, you know, part of the Legislative or Executive Branch.
BILL MOYERS: But times have changed. We're such a politicized and polarized and partisan society today.
SALLY PEDERSON: We need the courts more than ever. We need to have a branch of government that people trust to make decisions that are based on our Constitution and on our laws and not on what the special interest wants and not what you know, a corporation might want.
And if you're a judge and you know what a particular party's stand is on an issue, and that issue comes before you, then, you know, you may think twice about how you decide that, because you know that party will come after you. That's, that's a terrible way to operate our courts.
BILL MOYERS: So, both of you, put this in some larger context. Obviously, it's not just, as you said earlier, about Iowa. It's not just about the American Family Association, the right-wing group in Mississippi. Do you see a larger pattern at work that's reshaping the Republican Party and our national politics?
SALLY PEDERSON: Well, I think money in the system. So many other things appear now to be for sale in the political arena. And we don't want justice to be for sale. So, you know, I think it's important that citizens have a better understanding and appreciation for what is going on around them, and they recognize this as part of a larger effort to have the people who have money to be able to control every aspect of our government.
BILL MOYERS: Just this morning I read a recent study reporting that over $200 million was spent in the last decade on state Supreme Court judicial campaigns. What do you make of that? Joy?
JOY CORNING Well, I think it's terrible. And I guess I'm so glad that I live in Iowa, where I know that if I, for some reason, had to go to court, I could go before a court that was fair and impartial in their decisions and it would not make a difference whether I had given a judge or a justice money for a campaign.
BILL MOYERS: One of the big spenders nationwide is the U.S. Chamber of Commerce. It won 21 of the 24 state judicial races in that it was involved in from 2001 to 2003. Do you think that's a coincidence?
SALLY PEDERSON: No, I don't believe it's a coincidence. And I think this is a real threat to democracy. When we lose faith in the ability to get justice through our court systems, then we're really in trouble.
JOY CORNING And what's interesting is the United States Chamber of Commerce has named Iowa's court system as one of the top five in the nation.
BILL MOYERS: You know, there was a recent study showing that more and more people in this country are distrustful of the judicial system, including the Supreme Court. Do you think there's a correlation between the amount of money that's pouring into these races and the growing public distrust of the courts?
SALLY PEDERSON: We're already seeing courts being attacked in other states. And the-- you know, sort of multiplier effect of how much money there is in, you know, invested in these court battles now compared to, you know, two years ago, four years ago, eight years ago, it's just, you know, there's an enormous effort to have money as part of the equation in our legal system, in the courts. And that's a bad thing for democracy.
BILL MOYERS: Sally Pederson, Joy Corning, thank you for being with me.
SALLY PEDERSON: Thank you, Bill.
JOY CORNING Thank you.
BILL MOYERS: Iowa, as we said, is a bellwether state, and what has happened there is spreading. In Florida, the state Republican Party is trying to oust three state Supreme Court justices for a ruling on President Obama’s healthcare law that conservatives found disagreeable. A local Tea Party faction in Pennsylvania says it will take on two justices who refused to uphold the voter ID law that was passed by Republicans in the state legislature.
Meanwhile, of the 38 states that elect their high court judges, North Carolina is one of the few that utilizes public funding for its judicial campaigns. But now some folks have formed a Super PAC there so that unlimited and undisclosed funds can try to determine who dispenses justice. Round and round it goes and where it stops, only the highest bidder knows.