By MICHAEL J. CRUMB and NOMAAN MERCHANT
DES MOINES, Iowa - Emboldened by the success of a ballot initiative to oust Iowa judges who supported gay marriage, conservative activists are looking for new ways to use the power of the vote to strike back against the courts.
Judicial-removal campaigns have generally been difficult to sell to the public. But now some groups view them as a potential tool to influence the judiciary on gay rights, abortion and other divisive social issues.
Organizers of the Iowa campaign had several important advantages: a well-funded TV campaign, a grass-roots structure and an electorate that was receptive to their message.
"For those who impose what we perceive as an immoral agenda, we're going to take them out," said David Lane, executive director of AFA Action, the political arm of Mississippi-based American Family Association, which contributed about $100,000 to the Iowa campaign. He said the group would do so again wherever judges "impose their will on free people."
Iowa was one of at least four states where groups sought to remove judges in Tuesday's election, but it was the only place where the effort succeeded.
The anti-abortion group Kansans For Life failed to remove four Supreme Court justices for their decisions regarding abortion clinics.
In Colorado, three high court members withstood a removal campaign focused on their tax decisions. And in Illinois, a Supreme Court justice survived an attempt to oust him because he overturned a cap on medical malpractice damages.
"There's a very small number of extremely emotional issues that can cause voters to weigh in and take judges off the court," said Charlie Hall, spokesman for Justice at Stake, a nonpartisan group that campaigns to keep the courts impartial. "For the most part, it's still the rare exception."
Hall said gay marriage rulings are likely to cause the biggest backlashes in any future elections, but that abortion also could motivate many voters.
Brian Brown, executive director of the National Organization for Marriage, said earlier referendums in California and Maine, plus the Iowa campaign, prove that gay marriage is an issue that will motivate voters to act.
In Maine, voters overturned the Legislature's passage of a bill legalizing gay marriage. And in California, voters approved Proposition 8 banning gay marriage, but that measure is being appealed.
Brown, whose group spent $235,000 on the Iowa effort, said the effort succeeded because it involved extensive TV ads, campaign phone calls, a 20-city bus tour, and outreach at churches and other venues.
"People do care that judges are forcing their will on people," he said.
Brown said the group may organize future campaigns to remove the other four Iowa justices involved in the same-sex marriage ruling. And they might take on judges in other states, too.
Brown said his group's focus is now to get a constitutional amendment on the ballot in Iowa to give voters a chance to overturn the court's decision and redefine marriage as being between one man and one woman.
Lane, of AFA Action, said the distribution by conservative churches of 200,000 voter guides was a big factor that will be effective in future judge-recall efforts.
"No question it would work," Lane said.
Troy Newman, president of the Wichita, Kan.-based anti-abortion group Operation Rescue, said Iowa's vote could be a model for more challenges around the nation. He said his group plans to get involved in other state judicial races but has not decided which ones to target.
Operation Rescue, which also opposes gay marriage, made phone calls and sent volunteers to lobby Iowa voters, Newman said. He predicted that judicial challenges, especially over gay rights and possibly abortion, would happen more frequently due to rising voter anger.
"2010 was the beginning of the beginning," Newman said.
Gay rights groups and some legal experts do not expect a wave of judge removals, but they worry the Iowa case was meant to intimidate other courts.
Kevin Cathcart, executive director of New York-based Lambda Legal, which pursued the challenge of Iowa marriage laws that led to the court's decision, said he sees the campaign as "a warning shot across the bow of judges."
Lamda Legal will not stop pursuing its goals in the courts, Cathcart said, but the organization needs to examine what can be done to prevent more removals.
"I still believe the courts have been our community's best avenue to extending civil rights and moving closer to equality," he said. "While it is definitely a huge bump in the road ... we need to figure out how to do better through voter education."
Next time a removal effort begins, he added, Lamda Legal might wage a campaign to explain to voters the importance of an independent judiciary.
Rachel Paine Caufield, a law professor at Drake University in Des Moines, said the Iowa ruling could have a "really chilling" effect on judges nationwide. She speculated that some potential judicial candidates will opt against seeking jobs on the bench.
Connie Mackey, president of the Washington, D.C.-based Family Research Council's political action committee, said the group contributed $60,000 to the Iowa campaign and was eager to challenge justices in Iowa or elsewhere whose decisions are out of line with the group's agenda.
"Where we can play a role, and where we feel we can have a shot at taking those judges out, we certainly will jump in," she said.