DES MOINES — Judicial elections were once sedate, bottom-of-the-ballot affairs, frequently overlooked by voters focused on the bigger-name races.
But there was nothing low-key about the message on a bus that toured Iowa recently, bearing the face of state Supreme Court Justice David Wiggins and a giant “NO.” Nor was there anything decorous about the contingent of lawyers that trailed with a smaller truck urging “Yes Iowa Judges.”
A Christian conservative group, Iowa for Freedom, is campaigning to remove Wiggins from the bench because of his vote in a unanimous 2009 decision overturning the state’s ban on same-sex marriage. The cause has drawn two figures not normally interested in the workings of a state court system: former senator Rick Santorum (Pa.), winner of the 2012 Iowa presidential caucuses, and Louisiana Gov. Bobby Jindal — both possible Republican presidential contenders in 2016.
“I didn’t come here for any reason other than to encourage the people of Iowa to do what you do so well,” Santorum said. “And that is to speak loudly to the country.”
Welcome to round two of the fight over the Iowa court. In a campaign launched in 2010, conservative activists unseated three of the seven jurists who ruled that the state’s Defense of Marriage Act violated the equal-protection clause of Iowa’s constitution. Organizers called their effort, backed by national conservative groups that contributed nearly $1 million, a warning to “activist” judges seeking to “legislate from the bench.”
Their success stunned the legal community and deepened concerns about the injection of money and politics into courthouses. Judges in Alaska, Colorado, Illinois and Kansas faced similar retention fights in 2010, although only in Iowa did the jurists lose their jobs.
This year in Florida, a group with tea party ties and super-PAC support is seeking to oust three judges on the state Supreme Court who refused to allow a ballot measure opposing a key provision in President Obama’s health-care plan.
Wiggins has declined interview requests, breaking his silence once, in a September op-ed in the Des Moines Register, in which he decried the politicization of the courts.
“As a judge, I cannot be motivated other than to follow the law where it leads me,” he wrote. “As a judge, I am not here to say what is right or wrong. I am here to figure out what a statute means and uphold a person’s rights guaranteed by the constitution.”
This time, however, the campaign against the court may be up against greater odds. Voter attention is focused elsewhere. And with pro-gay-marriage initiatives on ballots in Maine, Maryland, Minnesota and Washington, interest-group money is limited. Anti-Wiggins spending to date totals less than $250,000, according to state filings. That includes $100,000 from the National Organization for Marriage and $25,000 from Santorum’s group, Patriot Voices.
Perhaps most significant is the softening attitude toward gay marriage, now legal in five other states and the District.
“As time passes and friends and neighbors come out and get married, people realize that they have less and less to fear,” said Sally Pederson, a former Democratic lieutenant governor who is co-chairing a fundraising effort to retain Wiggins and promote an independent judiciary.
A Des Moines Register poll late last month found 49 percent of likely voters in favor of keeping Wiggins on the bench and 41 percent opposed, compared with 32 percent in favor of retaining the three judges in 2010. (Iowa state judges are appointed by the governor but stand periodically for votes on whether they should be retained.)
In February, a poll by the newspaper found that 56 percent of Iowans were opposed to legislative efforts to pass a constitutional amendment to ban same-sex marriage. That is consistent with other swing states: Voters back gay marriage by 21 points in Florida, 15 points in Ohio and nine in Virginia, new Washington Post polls found.
In Iowa, conservative activists concede that they face an uphill fight in recapturing the energy of 2010, when the court case at the heart of the dispute, Varnum v. Brien, was only a year old.
“Once you win a state championship, it’s a challenge to get them back into the locker room and say let’s do this again,” said Bob Vander Plaats, chairman of Iowa for Freedom, an offshoot of the Christian conservative organization the Family Leader.
Chuck Hurley, president of the allied Iowa Family Policy Center, attributes the shift to what he calls “the Will and Grace engine of Hollywood” that has portrayed gay relationships as acceptable and desirable.
The most enigmatic figure is the jurist at the center: Wiggins, 60, a blue-collar Chicagoan who drove a delivery route for his father’s egg business and was the first in the family to attend college. Appointed by Gov. Tom Vilsack (D) in 2003, Wiggins hasn’t always won friends with his blunt, sometimes abrasive presence, local lawyers say.
“He doesn’t go out of his way to please people,” said Des Moines lawyer Guy Cook, who is leading the local bar campaign on Wiggins’s behalf. “He’s not some academic who went to a prestigious Ivy League school. He earned his stripes.”
Meanwhile, Kate Varnum, the lead plaintiff in the court case, said she is encouraged by what she sees. She and her wife, Trish Varnum, are among the 4,500 same-sex couples who have married in Iowa since 2009.
“People thought we would destroy marriage and that awful things would happen to children,” said Varnum, 38, who lives in Cedar Rapids with her wife and their adopted 11-month-old son, Alex. “We’ve come a long way since 2010.”