On Election Day 2004, the public was to vote yes or no to retain Neary, a 47-year-old jurist who was appointed by Democratic governor Tom Vilsack in October 2002. Iowa is one of 15 states where judges are appointed and then run in uncontested races to retain their seats, a system known as "merit selection." These so-called "retention elections" typically occur in the first general election after a judge's appointment and at regular intervals thereafter, which, for district judges in Iowa, is every 6 years.
In the weeks and months following his decision, Neary became the target of a full-scale conservative campaign to unseat him -- complete with accusations that he was a "judicial activist" seeking to destroy the tradition of marriage -- through a barrage of radio ads, brochures, yard signs, and protests. Colorado-based evangelical leader and Focus on the Family founder James Dobson even showed up at one rally in Sioux City to stump against Neary. Warning a crowd of thousands against judges who create laws rather than interpret them, Dobson alleged, "You've got one of them right here, Judge Jeffrey Neary."
Prominent Democratic and Republican attorneys who supported Neary on the grounds of his character and judicial ability created a political action committee to combat the forces arrayed against him. Ultimately, they raised an unprecedented sum for a judicial race in Iowa -- $27,735. Neary emerged victorious, but with only 58.9 percent voting yes in a state where judges routinely get 75 percent or more. "There's never been a judge [in Iowa] that had to face what I had to face," says Neary.
In recent years, a handful of states have flirted with implementing a merit-based system for their judges. However, the Christian right has fought against the measures every step of the way, praising contested elections as the way to keep judges responsible to the "will of the people." Yet proponents of merit selection find an irony in this: Why is it necessary to pit candidates against each other, encourage influence-peddling, and engage in mud-slinging to select a judge? As the website of the nonpartisan American Judicature Society notes, "Not only does merit selection ensure that only the most qualified candidates become judges, but... retention elections provide a mechanism whereby those judges who are failing to live up to their responsibilities to the citizens can be removed from the bench."
At a time when religious conservatives are stepping up efforts against both individual judges and the way justice is delivered in this country, MotherJones.com spoke with Neary about the right's attack on the judiciary, the task of judges, and the merits of merit selection.
Mother Jones: Across the country, we seem to be seeing more and more conservatives railing against so-called "liberal judges." What's your take on this?
Jeffrey Neary: The right appears, to me, to be wanting judges to be political candidates—and this is truly most unfortunate. They want to know judges' stances on positions and how they would rule with regards to certain issues because they expect that judges will make decisions like politicians will.
There's a great amount of people that seem to be thinking that judges are doing things willy-nilly on their own, that they've got this plan, this to-do list, that says this is what I've got to get done while I'm on the bench. I don't believe that's the case.
MJ: Are there judges out there on either side of the political spectrum that do carry an agenda?
JN: Individuals behind the robe have strong beliefs, convictions, feelings, and opinions, and it's impossible to leave who you are at the door when you do your work. However, I think it's imperative that we, as judges, not carry with us a plan of things we intend to do to change the world. That's the wrong place for it. We're not politicians, and I don't believe I know of any judges who do that—and I certainly don't know any personally.
MJ: What is a judge's role?
JN: Our role is to allow for the peaceful resolution of disputes between parties. I can't ensure what the quality of their case is, but I can ensure that they have access to the system and that the way we do it is reasonable and fair. I think our job is as public servants. We're not folks that should be out there making law or doing things in a proactive fashion. Of course, on occasion, when things are presented to us, we rule in such a way that it changes the way things are perceived, it changes the way business is done, and sometimes it changes the way laws are made.
MJ: In an infamous example, you amended a divorce decree for a lesbian couple, which was followed by quite the hullabaloo about whether this was going to legalize same-sex marriage in Iowa. What is your take on same-sex marriage? And how did your beliefs play into how you ruled?
JN: I left my beliefs at the door. The reality is this. Now you're asking Jeff Neary what Jeff Neary thinks, not Judge Neary, okay? Jeff Neary himself personally is not in favor of same-sex marriage. Having said that though, I am in favor of an equalization of the rights and responsibilities similar to marriage, so that folks that have same-sex partners have the ability—like they would if they were married—to be able to own property in the same fashion and leave things to each other, inheritance-wise, and things like that.
Maybe that's a horse of a different color, and maybe it's not. That's what Vermont did statutorily. The traditional concept of a marriage, to me, still is valuable, but I also recognize that there are folks who have relationships out there that are of a same-sex nature that ought to have rights attached to them, and they ought to be taken care of just like folks who are married.
MJ: Was this something that you found yourself explaining in the wake of your decision or during your retention election campaign?
JN: No, I avoided that as long as I could because, to me, it wasn't the issue. The issue in the case was that these folks were from Iowa; they wanted to terminate this contractual relationship they had, which was called a civil union; and they wanted to put it to rest and move on and declare their rights as to who owned what, who got what, and those kinds of things. That was the issue. I've always said, I may personally believe one thing, but I can leave that at the door and do what I think is right and fair under the laws of Iowa and this country.
And I had people challenge me. They would say, "Well, what you did, Judge Neary, was to destroy the concept and the belief that we all have in marriage." And I would say, then riddle me this: What does divorce do? I said that rhetorically, obviously. But if judges decided everything based upon what ills they might cause on the rest of the world, what would we do any day? Every divorce I grant, at least arguably, tears a family apart. So am I helping marriage or the concept of marriage by granting a divorce, giving one party custody of the kids and the other party visitation? No I'm not, but the law says I have to. My druthers as a person would be to say, "You guys figure out a way to work it out. I'm not going to dissolve your marriage." Now that's not practical, and that's not what the law requires me to consider doing.
MJ: Can you talk more about how judges are selected in the state of Iowa?
JN: In Iowa, we are selected as judges through a merit system. Our political affiliation has nothing to do at all with who's selected. Those who are interested in becoming a judge submit a letter of interest and paperwork and a writing sample. A commission in our district—which is made up of half men, half women, half Democrats, half Republicans—interviews everyone and selects two candidates, who are then sent to the governor. He has to pick one from what the people have sorted to be the two best candidates, based on their judicial demeanor, their breath and depth of experience and background, their approach to public service. Then we’re up for retention. Nobody can run against us in Iowa; we run against ourselves, so to speak. It's a retention election. Now that's a whole world different from those states where people have to run one against the other.
MJ: How exactly is your world different from the world of contested elections?
JN: Think about yourself in the middle of a litigation case, and the judge that's sitting up there just recently ran for election and was reelected. Your lawyer gave him 50 bucks and the other guy's lawyer gave him $10,000 because he's from a larger firm. How do you feel about that? And where do you think that might end up? I'm not suggesting the judge would do something inappropriate with regard to how he or she would rule in that case, but in Iowa, for example, in the merit system that we have, we don't have to worry about that. Nobody gives contributions, so we completely alleviate the need for anybody having any fear of political ramifications or fallout.
MJ: So the merit selection method is pretty good at keeping politics out of judicial selection?
JN: Absolutely. We don't spend millions of dollars. We don’t even spend hundreds of dollars on election campaigns. You compare what we do to what they do, say in Illinois, where they spent millions of dollars. I cannot comprehend that. It seems to me all that leads to is the buying or purchasing of justice. I'm absolutely committed to a merit system. I cannot fathom how it would work otherwise, and I would think it would be unethical. It just seems to be contrary to justice. I know judges in other states would tell you that it works just fine, that it's a give and take, etc. I frankly don't believe it.
One of my good friends who is a judge from Arkansas said, "You know what I do? I go to all the political fundraisers, both the Democrats and the Republicans. They all know I'm a registered Republican, and they all know I'm just trying to keep them all happy and do everything I can to get the votes I've got to get." We laughed because he used the phrase, "I have to fish off both sides of the dock." To me, that is just as if I was going to run for governor—getting the right blocs of people to come to my aid when it comes to voting and then I think I have some allegiance to somebody.
In my merit-based judicial world in Iowa, my allegiance is to everybody. It's not tainted by whether someone gave me some money or not; it's not tainted by if somebody is a Democrat or a Republican or an independent; it is merely based on the merits of the case. I'm certain that judges from those states where folks run in elections that are political in nature are going to tell you it's the same in there state, but I can't fathom that.
MJ: Presently only 15 states use merit selection for judges. What would need to happen for more states to employ it?
JN: It's going to take a commitment by a vast majority of members of the bar that care about the integrity of their system to fix that. There's also this countervailing force, I don't know that it's always the right—it could in some corners of the world be the left—but presently I see the right is against that because they somehow believe it entrenches liberal judges. I don't know where the basis for that is.
They just typically don't like the decisions we have to make because we divorce ourselves of the moralistic things that they would want us to impose. Our work is based on statute, case law, and common sense. We deal with what the law tells us to do when we get into our offices. They would rather that we not do it that way. They're going to fight every way they can to make judges politically accountable for what they do and make the judicial world a political world.
MJ: Do you expect a push to change judicial selection in Iowa from merit selection to these types of contested races?
JN: I know the Iowa State Bar Association is absolutely 100% committed to the integrity of the Iowa system. I've never heard a person yet in Iowa say that this is the wrong way to do this. In fact they all say it has worked well for us. On a general basis, folks are happy. There was a poll done recently about the fairness of the judiciary, and in Iowa, we were one of the top five judiciaries in the country.
MJ: In light of this activism of the right, are we doomed to a future in which judicial races are more politicized and more polarizing?
JN: There will be instances where those kinds of things happen, but people will say, "This shouldn't be a political thing and this bothers us that somebody's decided to make it that way." And if the judge who is under the microscope is able to maintain his or her integrity and hold his or her head up high, I think that judge will always prevail. People will say it's okay to disagree but to take after somebody personally is a different thing.
The judicial system is sort of the last bastion of integrity. It's now under attack, though I don't think such attacks will be successful in the long run. I think there's going to be some political fallout in Washington, D.C., that will steal some of the thunder of these groups like Dobson and the like. I think folks are going to sit up and take notice, and I think [these groups] are going to lose their influence.
MJ: What do you see happening?
JN: I think that we eventually have to call this criticism what it is. I think it's all a big smoke screen to put together political forces, and whoever's in the way will get shot at. If it's a judge today, it's a judge. Tomorrow it might be a sheriff or a county attorney or it might be another political office holder. The reality is when it gets right down to looking at the person that's being attacked, I think most folks will jump off the bandwagon.
MJ: How should a judge, given this political climate, handle potentially unpopular or controversial decisions?
JN: Every time we make a decision, somebody's unhappy. Obviously, that goes without saying. This is my rule of thumb: Don't deviate or change from the way that you've always done things. Whatever you decide, explain yourself well and in-depth and don't be afraid to be lengthy if you have to. From judges' perspectives the best thing they can do is communicate things. I would encourage a judge not to give in to the temptation to let the outside pressures dictate how you handle a case.