A Challenge To the Iowa State Judicial Nominating Commission

By Nathan Tucker

On December 13th, the state nominating commission announced that it had begun the process of filling the vacancies created by the successful anti-retention vote this past fall. In responding to public demand, the commission indicated that it would endeavor to make the process more open and transparent. To date, however, the commission continues to stonewall and obstruct efforts to learn more about the process.

For instance, on December 29th, Iowa Judicial Watch (IJW) made the simple request for a copy of the application form to be used by attorneys applying for the three pending Supreme Court vacancies. When this request was ignored, IJW made a Freedom of Information Act (FOIA) request for a list of all those who requested an application and received one before we did. This has also been ignored.

Pursuant to Iowa’s Freedom of Information Act, on December 19th, IJW also requested:

• All written communication received by members of the State Nominating Commission (individually or collectively) in support of, or opposition to, any applicant for the three vacancies on the Iowa Supreme Court.
• All memorandum or other documents regarding this vacancy generated by the Commission, including but not limited to the minutes of meetings held by the Commission since November 2, 2010. Please include a copy of the Commission’s internal rules of procedure and, if it is not included in such rules, a description of the procedure the Commission uses when names of potential candidates are suggested to the Commission but those candidates have not yet completed an application.

To date, this request has also been ignored.

Also, in it’s December 13th press release, the commission promised that, “in light of heightened public interest in judicial appointments, the Commission plans to open the interview portion of the meeting to Iowans throughout the state by streaming the interviews on the Internet.”

However, IJW has learned that individual commission members are already interviewing applicants one-on-one outside the view of television cameras, leaving Iowans to wonder what issues are discussed behind their backs.

Therefore, Iowa Judicial Watch challenges the commission to come completely clean and open the entire process, from start to finish, to the public view by:

1. Comply with open meeting laws:

The commission should voluntarily comply with Iowa’s open meeting laws in anticipation that the General Assembly will soon require it to do so. As the Des Moines Register recently editorialized:

Elected leaders in West Des Moines looking to fill two high-profile jobs are struggling with whether they should let the public in on the process. It is disappointing they did not instinctively say: “Of course the public should be able to witness the process from beginning to end.”

The commission should follow through with its promise to make interviews with the applicants public, not just online but also for those members of the public wanting to attend in person. Additionally, the individual commissioners should refrain from any private interviews with the applicants and, if any have already taken place, the participants and discussions should be publicly disclosed.

This obviously does not prevent commission members from important and necessary interviews with an applicant’s references, partners, clients, colleagues, and business associates, but simply ensures that there are no behind-the-scenes negotiations with the applicants themselves.

But the commission should go a step further and hold all commission meetings in public, including the deliberations and voting on applicants. Under Iowa’s open meetings laws, a government body can close a meeting to consider an appointment or hiring, but only if it is requested by the individual applicant and two-thirds of the commission believe it is “necessary to prevent needless and irreparable injury to that individual’s reputation.”

As the Register continued in its December 13th editorial: “It is hard to see how being considered for an important public position would cause injury that is both needless and irreparable.”

2. Make everything available online:

The commission is subject to Iowa’s public records laws, and it should immediately and publicly comply by automatically providing the following materials online:

• The application form to be completed by those applying for a judicial vacancy.
• The commission’s internal rules of procedure.
• Live streaming and archived video of the interviews with applicants and all other commission meetings.
• Minutes of all commission meetings, including the votes taken, since November 2nd.
• The completed applications and writing samples of those applying for the pending vacancies on the Supreme Court.
• The letters of recommendation and opposition received by the commission, individually or collectively.
• All documents, memorandum, and correspondence generated by the commission, individually or collectively, regarding these vacancies.
• A breakdown of the commission’s expenditures.
• Five days notice of all commission meetings.

3. Allow for public comment:

No where in the commission’s December 13th press release did it say that it would accept public comment on those who apply for a position on the Supreme Court, nor does current law require it to do so.

Again, in anticipation that the General Assembly will soon require it to do so, the commission should allow the public to weigh in on the applicants. To give the public sufficient time to comment on the qualifications of the applicants, the commission should post online all applications, writing samples, and letters of recommendation/opposition by Monday, January 17th, the next business day after applications are due on Friday the 14th.

The commission should delay holding interviews and voting on applicants until the week of January 31st, which would give the public two weeks to review the applicants and submit comments and concerns to the commission. Additionally, the commission should allow the public to submit written questions for the applicants to answer during their interviews. Finally, the commission should allow members of the public to address the commission in person before deliberating and voting on applicants.

4. Use a more complete questionnaire.

Though IJW does not have a copy of the application form to be used by those applying for a position on the Supreme Court, past application forms have failed to provide a complete picture of an applicant’s experience and absolutely no information on a job-seeker’s judicial philosophy.

For instance, the applications have failed to ask applicants about potential conflicts of interest, the nature of their practice and what types of cases they handle, a list of the most important legal issues they have handled, references that can be contacted, and copies of articles and op-eds they may have written.

IJW, therefore, has created a judicial application modeled on those used by the U.S. Senate and states with the commission system and requests the commission to use it in filling the three pending Supreme Court vacancies. IJW also asks each individual commissioner to complete a separate questionnaire that we have specifically designed for them. The public has a right to know about their background, associations, and legal philosophy.

5. Submit nine finalists to the governor.

Finally, as the commission has done previously, it should submit the names of nine applicants to the governor and allow him to pick the three nominees from among all of them rather than submit three names at a time and forcing him to pick out of only those three.

Nathan Tucker is an attorney in Davenport, IA and is the executive director for Iowa Judicial Watch

Cross-posted from The Iowa Republican