Same-Sex Marriage and Judicial Elections

Largely overlooked in the spate of reports on the recent election was the defeat in a retention election of David Baker, Michael Streit, and Marsha Ternus, three Justices on the Iowa Supreme Court.  They had previously joined the majority in ruling that Iowa’s ban on same sex-marriage violated the state’s equal protection guarantees.  As a result of that ruling, Iowa became the only state in the Midwest to allow same-sex marriage.  This was important not only for gay and lesbian couples in Iowa but also in nearby states.  A majority of same-sex marriages in Iowa during the past year involved couples from Illinois, Minnesota, and Wisconsin.

One key to the election results was the money that was spent in Iowa by national groups opposed to same-sex marriage, and Iowa opponents of same-sex marriage welcomed the spending and surely delighted in the Iowa returns.  Bob Vander Plaats, a leader of pro-removal campaign said, “It’s the people rising up, and having a voice for freedom, and holding an out-of-control court in check.”  

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Aharon Barak: A Judicial Approach Shaped by the Worst and Best in People

Aharon Barak is known internationally for his role in strengthening individual rights and the civil courts in Israel. The accomplishments and prestige of the retired chief judge of the Israeli Supreme Court are what made him a good choice for presenting this year’s Hallows Lecture at Marquette Law School.

But beyond the Hallows lecture on judicial philosophy Monday and beyond what Barak said to several classes and at meetings with faculty members and beyond his remarks Sunday night at a dinner attended by leaders of Milwaukee’s Jewish community, there lies a personal side to what it motivates Barak as a judge. It came out in spontaneous remarks  at a private dinner Monday night after the Hallows lecture. 

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Special Committee on Judicial Discipline and Recusal

One important, but perhaps underreported, development in our legal world is the work of the Legislature’s Special Committee on Judicial Discipline and Recusal. The committee grew out of a request from Justice Patrick Crooks for the legislature to consider amendments to statutes governing judicial discipline and disqualification. Both issues have been hot button items in the Wisconsin Supreme Court in the wake of hotly contested and exceedingly well financed campaigns for seats on the Court in the 2007 and 2008 election cycles. The committee, consisting of legislators and public members, is charged with studying both issues and, if appropriate, make recommendations to the legislature.

Yesterday, I had the privilege of being one of nine invited guests to testify before the Committee. Four of the nine witnesses were sitting Justices on the Court – Chief Justice Abrahamson and Justices Bradley, Crooks and Roggensack. The hearing can be viewed here. I am the last (or as I would prefer to say “clean up”) witness.

Yesterday’s hearing had to do with recusal although some of the speakers addressed matters of discipline, largely addressing issues concerning the deadlock in the Gableman matter and how that might be avoided in the future. Much of the discussion on recusal centered on whether the legislature should adopt an objective standard (presumably other than, as I pointed out, the one announced in Caperton v. A.T. Massey Coal Co.), how that standard should be enforced and what it should be.

More to follow.

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