A Wink and a Nod from Branstad on Selection of Iowa Supreme Court Justices

By Nathan Tucker

On Wednesday, Governor Branstad appointed Iowa Court of Appeals Judge Ed Mansfield, trial judge Bruce Zager, and Davenport attorney Thomas Waterman to the Iowa Supreme Court.  Showing little regard for his past promises to Iowans, Branstad has made no effort to assure the public that his appointees will exercise judicial restraint.

Branstad had previously stated that he will only appoint candidates who respected the voters’ rejection of Varnum v. Brien.  Branstad had also recently pledged that:  “I feel an important obligation and responsibility as the chief executive of the state and the person who does make the appointments, to try and choose the very best people – people who I think share the philosophy of judicial restraint that I think most Iowans believe the courts should exercise.”

While he hesitated at making his interviews of the candidates publicly available, Branstad had indicated that he would consider posting non-confidential portions of the interviews online.  While certainly less than what the State Judicial Nominating Commission provided, it would have given Iowans the ability to assess the answers given by each of the nine nominees.

Instead, in making his appointments, Branstad simply stated:  “It is the role of the judiciary in the state of Iowa to say what the law is, as applied to cases before the courts, rather than saying what the law should be.  The separation of powers is central to our Iowa Constitution.”

Branstad, however, made no effort to assure Iowans that his appointees agree with his judicial philosophy.  To the contrary, each of his appointees have made troubling statements in their application material and/or interviews before the Commission, statements that the Governor has failed to indicate are not reflective of his appointees’ judicial philosophy.

For instance, perhaps echoing President Obama’s call for judicial empathy, Judge Mansfield wrote in his application material:  “Appellate judges should have enough real-world experience to understand the effects of their decisions on people’s lives.  There is more to justice than legal elegance…I would be honored to receive the opportunity to apply my judicial and other experience as a Justice of our Supreme Court.” (emphasis added)

Joining the chorus, Judge Zager wrote in his application that:  “I consider myself a progressive thinker…I also have a deep appreciation of the real-world implications of an appellate decision…Most importantly, I also realize that both as a trial judge and as an appellate judge, we are dealing with people’s lives.”  In his commission interview, Zager agreed that empathy is a good quality in an appellate judge.  He continued:  “A lot of it is a gut reaction…I have a good feel for people…It’s all about life experiences.”

For his part, Waterman wrote in his application that the law cannot remain static, failing to explain who determines how the law should change.  During his commission interview, Waterman voiced displeasure at the outcome of the retention vote, calling it a shock to the judicial branch.

Given the highly liberal makeup of the Commission, it may well be that none of the nine nominees could have assured the Governor that they would exercise any sort of judicial restraint on the bench.  But if that were the case, Branstad should have used this opportunity to educate the people on the need to change the process.

Instead, with a wink and a nod, the Governor apparently wants us to believe that he has found the judicial philosophy of each of his appointees acceptable.  Rather than claiming that the Commission tied his hands and that his picks are the best of the worst, Branstad now, for better or for worse, owns these three new justices.

Branstad has failed to exercise any type of leadership, much less conviction, on this issue, leaving the impression that his prior promises to Iowans were simply an attempt to pander to conservatives.  Conservatives don’t want campaign promises, they want action, and the Governor has failed to deliver.

Nathan Tucker is an attorney from Davenport, and executive director of Iowa Judicial Watch.