Part of a threeday Holiday Weekend of nonfiction books and authors. Booktv, television for serious readers. You can keep in touch with Current Events from the Nations Capital with cspan radio audio now. Call to hear congressional coverage, Public Affairs forums, and todays washington journal program. Listen for a recap every day on washington today. Cspan radio on audio now. Call 2026268888. Longdistance or phone charges might apply. Next, a group of women judges discussed the challenges of maintaining their independence in a judicial system that is increasingly subjected to partisan issues. Speakers include one of the florida judges involved in the 2000 bush v. Gore case and an iowa judge who lost her job due to a ruling on samesex marriage. This wass cohosted by the this was cohosted by the National Constitution center and the National Association of women judges. Its an hour. Ladies and gentlemen, thank you so much for joining us and welcome to the National Constitution center. Im jeffrey rosen, the president of this wonderful institution, the National Constitution center is the only institution in america chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis and to fulfill that inspiring goal, we have a series of programs we call ourselves americas town hall and we bring together the best voices from all sides of the spectrum to debate the constitutional issues in the center of american life. In the next few weeks we have a series of programs that i hope youll join us for, including on june 20, david boies and ted olson will come to discuss their new book about marriage equality. On june 26, well have a wonderful debate with our partners at intelligence2 about the constitutionality of restrictions on Campaign Finance reform. On june 16, well have discussion of the cell phone case thats the Supreme Court is about to decide and talk about the future of the Fourth Amendment with the two advocates who argued the cell phone cases before the court here at the constitution center. Its a wonderful series of events coming up, and i hope youll join us both here at the center, online and on our website. Im especially thrilled, ladies and gentlemen, to introduce todays program presented in partnership with the National Association of women judges. This is a program near and dear to my heart. My friend, Justice Pariente and i, more than a year ago at g. W. Law school, where i teach and where you graduated from, talked about how wonderful it would be to bring together women judges who are defending the idea of nonpartisanship and the rule of law, to talk about their concrete experiences with judicial elections, with the challenges of merit Retention Systems and to give you, the people, a direct insight into the real threats to Judicial Independence that are faced by judges today. Youll have an opportunity to learn more about the National Association of women judges and about their inspiring goal. Like ours, it is to be nonpartisan and to encourage votes for judges based on character, integrity, fairness, and a willingness to decide cases based on the law. We are also delighted to recognize Mark Robinson of the american board of trial advocates, whos a partner for todays program. Please turn off your cell phones and prepare for a really engaging discussion. And now, let me introduce our esteemed and extremely impressive panelists. Former chief justice of the iowa Supreme Court. She currently practices law in des moines, iowa, focuses on appellate case consulting litigation. She was appointed to the iowa Supreme Court in 1993 by the governor and selected by her peers to serve as chief justice in 2006. Her term on the court expired on december 31, 2010. And you will hear her striking story about the reaction to a decision that she issued in iowa and the consequences that it had in iowa. Justice barbara has been a justice of the florida Supreme Court since 1997 and served as chief justice from 2004 to 2006. Shes been involved in her time with the court with several notable cases, including the bush v. Gore case from 2000, the Michael Schiavo case from 2004 and fascinating cases weve discussed involving dogsmiths and searches and seizures. Youve had sobering reactions to your decisions as well and well learn about them. Finally, im absolutely honored to welcome to the National Constitution center judge anna blackburnerigsby, who is the president of the National Association of women judges. She was nominated by president george w. Bush to the district of Columbia Court of appeals in 2006. She chairs the District Of Columbias Court Standing committee on fairness and access. Shes a commission ore the districts access to justice commission. And before her appointment she was nominated by president bill clinton to serve as an associate judge in the superior court of the District Of Columbia. This is quite a remarkable panel and id like you to join me in welcoming them to the National Constitution center. [applause] judge, were going to begin with you. You had an extraordinary experience in iowa. You issued an opinion in a case involving iowas defense of marriage act. Tell us about that case and your decision. Well, our court had an appeal from 12 samesex couples, 12 individuals, six samesex couples, who had been denied a marriage license in iowa, based on iowas version of the defense against marriage act. They challenged the constitutionality of that statute under the iowa constitutions equal protection clause. Our court issued a unanimous decision that the statute did in fact violate the equality rights of these individuals. And describe the reaction to that decision. Well, the case was controversial even before we issued our opinion. There was a lot of social commentary, a lot of public discussion of whether samesex marriage should be allowed or not. And there were demonstrations outside of the Judicial Branch building when we heard oral arguments on the case. So we knew that our decision would be controversial. And when we issued the decision, of course, it was very controversial. And there were a lot of groups who were opposed to our decision, primarily on religious grounds. Some of those groups took out tv ads and we have videos of some of those ads now. Right. The actual i think the opposition reached its crescendo when three members of our court happened to be on the retention ballot. In other words, we were up for retention. Voters were asked to vote, yes, retain these judges, no, do not retain these judges, in the 2010 general election. And what youre about to see were ads that were created to campaign against our retention. Let us see the ads. After the judges on iowas Supreme Court become political, ignoring the will of voters and opposing samesex marriage on iowa, liberal, outofcontrol judges ignoring our traditional values and legislating from the bench. Imposing their own values on iowa. The opinion you serve as voters to redefine marriage, what will they do to other longestablished iowa traditions and rights . Three of these judges are now on the november ballot. Send them a message. Vote no to retain these Supreme Court justices. Judge, im going to ask you in a moment what your reaction was. But first, let me ask, what was the result . Did you keep your seat . We did not keep our seat. None of us were retained. Only the second ad actually was on tv. The first video that you saw is, i think, about a twominute video that was circulated within the religious community in iowa, which was kind of used as a grassroots structure to organize novote on the retention ballot. And do you think that the ad was responsible for your defeat . Im sure it contributed. [laughter] you know, i dont know what single action they took resulted in our nonretention. But Public Opinion at the time, based on polling done by the des moines register, showed that the majority of iowans opposed samesex marriage. So, they had a receptive audience in terms of whether people agreed with the decision or not, just on social grounds. How did you feel when you saw the ad . Honestly, i the first ad i never saw until afterwards. I just didnt really want to watch them. I didnt even watch tv during that period of time, ill admit. Now, on the one hand, it is factually correct. It said that court ignored the will of the legislature and the people. But on the other hand, was that an appropriate ad to run on television . I think citizens can vote for or against a judge for any reason they want, including because they disagree with an opinion. Thats certainly how our democracy works. But i also think its important for citizens to know when they are exercising their vote in that way, that there are consequences to voting judges out of office because they have issued an opinion that is contrary to Public Opinion. What are the consequences . Well, it clearly sends a message to judges that in the future, they should hesitate to issue an opinion that may be correct under the law, that may be a decision, a result, that the law demands and yet, is unpopular. Theyre telling those judges to check the opinion polls on the issue and follow those, rather than following the law. And thats a very dangerous message to be sending. It was exactly the message intended by those who opposed our retention. They said on their website, we intend to send a message across iowa and across the country that judges ignore the will of the people at their peril. And so it was a message of intimidation, and certainly the fact that we werent retained, that voters bought into that, sent a message to judges by citizens. We want you to follow what we think the law ought to be, rather than what the law is. Do you think that message has changed the way judges are deciding cases now . Well, i think were naive to think that it doesnt have an impact on judges, whether its consciously thinking, gosh, if i make this decision im going to make this group mad or business big will come after me or whether its subconscious in the back of their mind that they dont even realize is there. Sure it has an impact, but its not measurable. Judges are human. I dont think as a citizen its comfortable with them having to worry about whether theyre going to keep their job. It shouldnt be about the judge keeping his or her job, it should be about enforcing the Constitutional Rights that we value. What was unusual about your case . Have there been previous examples where all three judges were voted out because of unpopular decisions . We never had a retention election that was controversial. In fact, i had two prior retention elections. This was my third. I think it was my first retention election when somebody came into my office the day after the election and asked me, well, how much of the vote did you get . And i had forgotten that i was on the ballot. Thats how much they were just, you know, they were just not controversial. And remind the audience, the merit selection and Retention System is a nonpartisan system, where youre selected because of your abilities and stellar credentials, not because of your politics. A nonpartisan commission composed of lay persons and laweducated persons, licensed attorneys, interview applicants, and based on the applicants professional qualifications, their integrity and character, choose the three most highly qualified individuals. And those names are then sent to an appointing authority in iowa, its the governor. And the governor has 30 days to appoint the person appoint a new judge from among those three nominees. The intent is to take politics out of the appointment process. And then the retention election is a way to involve voters and give them an opportunity to remove judges. You know, mistakes can be made, and notwithstanding the meritbased commission system, if a judge proves unfit or becomes unfit, then they can be removed through the retention ballot. Well talk more with all your colleagues about what has changed. But i want to know, what was unusual about this case . Was it the nature of the topic, the marriage equality, or the internet . Why did it happen in iowa . Well, i think it happened in iowa because of the issue. And i really think all the money that poured into iowa came in because it was a startling decision in the heartland. It was startling because it was unanimous. And the individuals who oppose samesex marriage felt we have to stop this now. And the only way were going to do it is to intimidate other judges in other states, so they wont do what the iowa Supreme Court did, and by removing us from office, that was the message they intended to send. Obviously, you can see from the videos that the internet, youtube, media, all that made it easier for them to sell their message. Now, many other courts have considered the samesex marriage question since iowa, and its my understanding that every court to consider the issue has in fact since the Supreme Courts decision last year ruled in favor of marriage equality. Did this Campaign Successfully intimidate other judges, or did they have selection systems that made them immune to those sort of pressures . I think most of the decisions that youre referring to are in federal courts, where they dont have to worry about whether theyre going to be retained because they have lifetime appointments. So there really is a difference between the federal and state systems when it comes to Judicial Independence. I think the fact that federal judges do not think there will be retaliation against them for making a decision thats correct under the law, yet unpopular, certainly gives them some freedom to make those decisions without having to worry about their own career. And, yes, thats probably a significant difference. What is the solution to the experience that you underwent . What is a better s. Appointing state court judges system in appointing state court judges . I think before one discusses what is the best system for choosing judges or retaining judges, citizens need to ask themselves what kind of court they want. Do they want a court that makes decisions under the law, that upholds the rule of law, or do they want a decision a court that makes decisions based on whos the most popular, who has the most money, who shouts the loudest . And so once you make that decision, whether you want a court that makes political decisions or makes judicial decisions based on the rule of law, then i think you look to a system that minimizes the opportunity for politics to get into the system. And i certainly think that a retention election, where its a simple yorne vote versus running against yes or no vote, versus running against someone, minimizing the opportunity for politics to get into the system. But no system is immune from politics. There is no perfect system that can guard against politics coming into judicial selection and retention. The only way thats going to stay out is for voters to demand that the systems remain nonpolitical. Are voters likely to demand that . Well, were trying to educate them on the impact of their votes. The voters in iowa were sending a message to judges, we want you to behave like politicians. We want you to test the winds and go with Public Opinion. We dont care that its correct under the law. Or another big component, of course, in iowa was that we violated gods will by ruling the way we did. So the message there is, i guess, that i should have checked the bible or checked with my the priest in my church to ask how i should vote, rather than checking the iowa constitution and our long years of case law, which were in fact consistent with our decision. And youve warned, in fact, that voters should not turn judges into theologians in robes or politicians in robes. I dont think they should. Thats the voters choice. They can turn judges into theologians in robes and politicians in robes. You now have the opportunity to speak and write about the importance of Judicial Independence. What do you tell voters when youre trying to persuade them not to turn judges into politicians in robes . Well, i think that the rule of law is what distinguishes our democracy from other forms of government. And we have to be willing to uphold the rule of law, even when it upholds the rights of others, others whom we may disagree with. If the law doesnt protect everybody, if the law depends on whos standing in front of the judge, then we dont have neutral decisionmaking, we dont have fair and impartial judges, and we cannot say we are a society governed by the rule of law. Well said, judge. Thank you very much for that. [applause] we will return to these important questions in just a moment. I want to turn to you. You are no stranger to controversy. You were on the panels that decided bush v. Gore and the Terry Schiavo case. But it was a 2012 case involving an amendment to the Affordable Care act that your court rejected and got a lot of heat. What was the amendment, and what did you hold . First of all, i must say that 2010, with what happened in iowa, was a bellwether year. And as you all may recall, the Health Care Affordable health care act, obamacare, had passed. And there was a lot of controversy about it. In our state we have a way of amending the state constitution by legislative initiative or state initiative. Or citizens initiative. There had be