By Nathan Tucker
Iowans already have elections for members of the state nominating commission, but only a tiny fraction of the voting electorate can participate in them. Currently only attorneys have the ability to vote for commissioners, a behind-the-scenes process dominated by liberals which produces liberal judges who believe in a living constitution. Real and fundamental change in Iowa’s judicial selection process can occur simply by statutorily extending the franchise to every eligible voter.
The state nominating commission reviews applicants for the Supreme Court and Court of Appeals and forwards the names of three finalists to the governor for appointment. The governor must appoint one of the three finalists forwarded to him by the commission and, if the governor fails to make an appointment within 30 days, the decision falls to the chief justice of the Supreme Court.
The commission currently consists of fifteen members. Seven are selected by the governor (and confirmed by the Senate), and seven are lawyers elected by resident attorneys practicing in the state. Appointed and elected commissioners serve for staggered six year terms. The final seat is reserved for the chair of the commission, who is the most senior Supreme Court justice who is not the chief justice. The current chair of the commission is Justice Wiggins.
Several Iowans recently filed a lawsuit in federal court, arguing that the current selection of commissioners violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution because:
Invariably, one of the three nominees selected by the Commission will become a justice or judge in Iowa, so that the Commission determines the composition of the judiciary in Iowa. Despite having this significant power and function, seven of the fifteen members of the Commission are elected exclusively by the members of the bar of Iowa. This restricted election denies the citizens of Iowa the right to vote and the right to participate equally in the selection of justices and judges in Iowa. (emphasis added)
Putting aside the legal merits of the case, the argument presented by the suit has compelling political implications. Picking up on the public’s desire to have a voice in who their judges are, the Des Moines Register wrote in a recent editorial that: “[E]ven if this suit prevails, it would not necessarily change the need for the expertise lawyers bring to the selection process, just how they are picked. Indeed, public accountability in the merit selection process might be enhanced by giving Iowans a larger voice in who serves on the judicial nominating commissions.” (emphasis added)
The most glaring defect in the current makeup of the commission is that the vetting and de facto selection of judges takes place by a cloistered and unaccountable group of people dominated by the left-leaning Bar and Trial Lawyer Associations. This defect would be alleviated by allowing the public to vote for members of the nominating commissions, giving the commissioners a voter mandate to thoroughly and publicly vet nominees by, among other factors, their judicial ideology.
The Bar, having elected half of the commission members for nearly forty years, will have the difficult task of explaining to Iowans why the franchise shouldn’t be extended to them as well. They will try, of course, and claim that it would “politicize” the process, conveniently ignoring the fact that it is already extensively politicized behind closed doors rather than in public view.
When considering changing the judicial selection process, the federal system, while it certainly has its merits, also has its drawbacks. Senators are known for cutting back room deals among themselves by horse trading nominees in exchange for this particular bill or spending measure. Additionally, senators, who won election on a myriad of issues, are not above negligence when it comes to vetting a nominee’s judicial philosophy.
Only a commission whose members are elected by and accountable to the people can serve as an adequate check against judicial activism. An open and transparent process with public interviews, deliberations, and voting will allow the public to hold commissioners accountable for the judges they pick. To that end, the current process should be changed to allow the general electorate to elect the commissioners in non-partisan elections during odd-year municipal elections.
Additionally, the legislature should remove the senior judge, or any judge, from chairing the commission because of the inherent conflict of interest it poses. For instance, it places the judge in the difficult position of voting for or against candidates to join him on the bench. It also gives the judge an enormous amount of influence over his fellow commissioners, for no practicing attorney would dare disagree with a sitting judge he appears before and no lay person would presume to know more about the process than the judge.
While retention votes must remain a part of the system, the legislature should also establish term limits that would limit active judges to two six-year terms in a lifetime and senior (semi-retired) judges to one four-year term. Additionally, the legislature should require that the judicial application form specifically inquire into an applicant’s ideology and that the nominating commissions be subject to the state’s open meeting and public records laws.
Finally, a strong argument can be made that the General Assembly can change the membership of the nominating commission by statue without the need for a constitutional amendment. Section 16 of Article V of the Iowa Constitution reads in part:
Until July 4, 1973, and thereafter unless otherwise provided by law, the state judicial nominating commission shall be composed and selected as follows: There shall be not less than three nor more than eight appointive members, as provided by law, and an equal number of elective members of such commission, all of whom shall be electors of the state. The appointive members shall be appointed by the governor subject to confirmation by the senate. The elective members shall be elected by the resident members of the bar of the state. The judge of the supreme court who is senior in length of service on said court, other than the chief justice, shall also be a member of such commission and shall be its chairman. (emphasis added)
Placing the process in the hands of those elected by and accountable to the people is real and fundamental change we can believe in and enact this year. The next municipal elections will be held this coming November, and it should not be too much to ask that at that time we will be given a chance to vote for our own commissioners. We already have elections for commission members, and it is long past due for them to be taken out of the hands of the Bar and entrusted with the general public.
Nathan Tucker is an attorney in Davenport, IA and the Executive Director of Iowa Judicial Watch