Two Iowa Supreme Court justices said Wednesday it wasn’t the court’s role to send the Varnum case, an equal protection rights issue, back to the Legislature.

Chief Justice Marsha Ternus, one of three justices up for retention who are being targeted by a campaign to oust them Nov. 2 because of that ruling, said the constitution is the “supreme law of the land.” If a statute is found to be unconstitutional, like the violation of equal protection rights as in Varnum, then it should be declared void.

“The Legislature is free to amend the constitution,” she said.

Ternus and Justice David Baker sat down with The Gazette's editorial board to talk about the retention issue and the impact it will have on the Iowa court system.

Baker, also up for retention, said he ultimately sees this situation as positive because it’s a chance to educate. He doesn’t know where or how the misinformation started, but the court would have “overstepped its role to ask another branch of government to do that.”

Bob Vander Plaats said from the beginning of the “Iowa for Freedom” campaign to oust the justices because same-sex marriage was legalized with the Varnum decision, that he interprets Article 12.1 of the Iowa Constitution as meaning the court can void any legislation determined unconstitutional, but then it should go back to the Legislature.

Mark McCormick, an Iowa Supreme Court justice from 1972 to 1986, in a previous interview agreed with what the justices said today. He said Vander Plaats’ interpretation is wrong. The issue didn’t have to go back to the Legislature. The statute was found invalid, so there’s nothing to correct, “nothing to send back,” he said.

Baker said there’s a specific procedure to follow to amend the constitution but that’s a legislative question, not for courts.

Ternus said that’s why the separate branches of government are great because there are checks and balances in the system.

The Iowa voters can make the retention election work however they want, Ternus said. It can be based on merit or it can be turned into a political system.

Both justices feel they will be retained and hope this campaign to oust them based on one decision won’t affect judges’ and justices’ ability to rule on law, even if it’s a social issue and is unpopular.

“I think Iowans want judges to make decisions that are fair and impartial,” Ternus said.

Both Ternus and Baker feel the merit selection process and retention election are still the best way to select judges, instead of elections which put money and politics into the courts, but admitted there could be some improvements.

Baker said during a judicial conference this last summer they discussed a better way to conduct retention evaluations. Colorado, also a state who has retention elections, conducts in-depth performance evaluations.

An independent agency since the mid-1990 surveys lawyers and litigants, and observe the judges or justices up for retention, Baker said.

The major obstacle in adopting that system is the cost, he said. Colorado pays an estimated $2 or $3 million.

Ternus said Colorado even has mid-term evaluations, which is a self-improvement opportunity for judges before they face a retention election.

Ternus also said she didn’t see any harm with changing the nominating commissions to be politically balanced but she doesn’t know if it would make any difference. The majority of the nominating commissioners were Republicans when she was nominated.

The seven or five lay commissioners, depending on state or district commission, are appointed by the governor and the seven or five lawyer commissioners are selected by their peers, attend training and education to focus on merits and professional experience and knowledge of the applicants, not their political views or affiliations, she said.

“It’s a good process now but it might improve the perception of the process,” Ternus said.