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1626Judicial Independence Trumps Nature

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  • JAIL4Judges.org
    Aug 31, 2010

      The Iowa Supreme Court ruling that extended marriage rights to same-sex couples was assigned to Justice Mark Cady for one simple reason: He picked the case out of a box.

      Cady told a graduating Iowa law school class this year that he "became the author of the decision by chance," according to a video of the commencement speech posted online in July. He said the justices pulled numbers from a box to decide who would write the Varnum vs. Brien opinion, which allowed gay and lesbian couples to marry.

      Cady pointed to the landmark case several times as an example of judicial independence in an address to the 2010 graduates of the University of Iowa College of Law.

      "Varnum was one such time," Cady said. "Judicial independence is what explains why court decisions throughout history can first be criticized, and later embraced as pivotal advancements."

      He added: "Societal change is a part of life, but it seems to emerge through human effort - not human nature. An independent judiciary allows that effort to be recognized, even at times when human nature would urge the well-traveled path of complacency."

      The unanimous Varnum decision overturned a state law that defined marriage as the union of a man and woman. The court's seven justices ruled that the Iowa Defense of Marriage Act violated the equal protection rights of six same-sex couples who were denied marriage licenses in Polk County.

      Cady urged the graduates not to shy from unpopular work as lawyers, because "you may very well be performing your most important work. Remember, what is popular at a given time is not always right."

      The justice then cited the work of John Adams, who defended British soldiers against manslaughter charges in 1770 for their role in the Boston Massacre.

      "In Varnum, we likewise just did our job," Cady said. "We did our job as judges, and this is what led to our unanimous decision."

      Cady delivered his speech in May, before several groups announced plans to target the three other justices who are up for public retention votes this November. Bob Vander Plaats, a former Republican gubernatorial candidate, launched the Iowa for Freedom campaign this month to remove justices for what he sees as an abuse of power.

      Vander Plaats has said his effort is based not just on the gay marriage ruling, but on the potential for "blatant judicial activism" in cases involving private property and gun rights.

      Supporters of Iowa's merit-based judge-selection system say the campaign is an attempt to politicize the retention of judges who decide cases based on the law.

      The justices on ballots statewide are David Baker, Michael Streit and Chief Justice Marsha Ternus. Cady, who was appointed by then-Gov. Terry Branstad in 1988, will not stand for retention until 2016.

      The justices have declined interview requests and remained largely silent about the case. Ternus has said the justices will not partake in fundraising or other political activities, but she has defended the judicial system.

      The video was shot by a university employee, and a U of I spokesman recently noted where it was posted on the Internet.

      Posting to Desmoines Register by Ron Branson

      There is a misconception today that if a judge said it, that is the law. Having brought cases time an again to the U.S. Supreme Court, I have discovered the truth about courts. The law has little relevance to the judiciary or the outcome of  cases. An example is Branson v. Martin, 56 Ca.App 4th, 300 wherein the Appellate Court decided that the legislative list of who may serve as magistrates was incomplete, and they "hereby" added commissioners to Penal Code 808.

      I am often asked during elections, which judges I recommend they should vote for. My response is, "Do not vote for any judicial candidate who is covered by judicial immunity!" Well stated is the legal maxim, "No man is above the law." I include judges in that legal maxim, but judges think otherwise. We must establish a Special Grand Jury to establish when judicial immunity shall apply.

      Ron Branson
      National J.A.I.L. Commander-In-Chief