State Representative Steven Holt (R-Denison), chair of the Iowa House Judiciary Committee, offered a study bill, HSB 110, that reforms the make-up of the state and district judicial nominating commissions.

The bill passed out of a subcommittee on Wednesday consisting of State Representatives Holt, Brian Lohse (R-Bondurant), and Jo Oldson (D-Des Moines). It will now go to the full judiciary committee for a vote.

A Backgrounder

Before I explain what this bill does I need to provide some background information.

The Iowa Constitution was amended to adopt the Missouri Plan for judicial appointments in 1962. It intended to provide a non-partisan method for selecting judges that focuses on merit and removes politics from the process. Prior to this, Iowa’s Judges were selected by popular vote. Our current process, however, is just as political, but behind the scenes. It became less transparent over the years and provided way too much influence to members of the Iowa Bar.

Currently, the state judicial nominating commission includes eight members, one from each judicial district, who are appointed by the Governor to a six-year term and confirmed by the Iowa Senate. No more than a simple majority of appointed members shall be of the same gender. The terms are staggered so the terms do not end at the same time.

There is an equal number of elective members, two from each of Iowa’s Congressional Districts, who are elected by resident members of the bar in each congressional district. The law requires an equal number of men and women among the elective members of the commission (there’s a process to ensure that, but I won’t bore you with the details). They also serve six-year, staggered terms. The most senior justice on the Iowa Supreme Court, who is not the Chief Justice, serves as the commission’s chairman.

Similarly, each judicial district has a district nominating commission that is comprised of five appointive members selected by the Governor and subject to Iowa Senate confirmation. No more than three members can be of the same gender. There also can’t be more than one member per county unless each county already has one appointed or elective member or there are more appointive members than counties in the district.

Resident members of the bar in that district then choose five members. Only three can be of the same gender and there is a process to ensure that. They also serve for six-year staggered terms.

The most senior Judge in the district will then serve as the chairperson for that commission.

When there is a district court, Court of Appeals, or Supreme Court vacancy, the relevant commission then collects applications and conducts interviews of prospective jurists. They then submit three names for Supreme Court vacancies and two nominees for district court vacancies for the Governor to select to be the new judge or justice. If the Governor fails to make an appointment within 30 days after receiving those candidates, then the Chief Justice of the Iowa Supreme Court will choose. Consent from the Iowa Senate is not required.

The Iowa Constitution, following the Missouri Plan, also requires judicial retention elections. Each new judge or justice will be up for retention in the next judicial election following one year of service. After that, Iowa Supreme Court Justices are up for retention every eight years, and every other judge is up for retention every six years. A majority of Iowans voting must approve their retention. If not, then they are removed from office. Iowans removed three Supreme Court Justices in 2010 following the Court’s decision striking down Iowa’s Defense of Marriage Act in 2009.

Holt’s bill is designed to reform the process without requiring a constitutional amendment. Article V, Section 16 of the Iowa Constitution states that after July 4, 1973, and thereafter, the make-up of the judicial nominating commissions will remain the same as described in the Constitution “unless otherwise provided by law.” So the Iowa Legislature and Governor have the constitutional authority to change the make-up of the judicial nominating commissions without amending the Constitution.

Changing the make-up of judicial nominating commissions

In a nutshell, here is what HSB 110 does in terms of the judicial nominating commissions:

  • It replaces elective members to the state and district judicial nominating commissions with “commissioners” who are appointed by legislative leadership.
  • For the state judicial nominating commission, the Governor shall appoint eight commissioners just like before. There shall be one from each congressional district with no more than two in a congressional district unless each district already has two members. Unless things change after the 2020 census, this means there will be two commissioners per district. Half of the commissioners will be male and half female. Half of the Governor’s appointments shall be admitted to practice law in the state. Under this bill, Senate confirmation is no longer required.
  • The Speaker of the House, House Minority Leader, Senate Majority Leader, and Senate Minority Leader shall appoint two commissioners each to the state judicial nominating commission. Each leader has to appoint commissioners from two different congressional districts. Each leader has to select a male and female commissioner and at least one of their choices has to be admitted to practice law in the state. If there is a vacancy before a commissioner’s term is complete, then the appointment of the replacement has to be made by a person who holds the same leadership position as the person who made the original appointment. The replacement must be of the same gender as the outgoing commissioner.
  • For each district judicial nominating commission, the Governor selects two men and two women, no county can have more than one commissioner unless the number of commissioners outnumbers the number of counties in the district. As with the state judicial nominating commission, there will be no Senate confirmation.
  • Each legislative leader has one appointment to each district judicial nominating commission. Their selection has to be someone who is admitted to practice law in the state. The replacement process for unexpected vacancies is the same as it would be for the state judicial nominating commission.
  • Commissioners who have served a full six-year term are ineligible to serve a second term. The terms will be staggered.
  • All commissioners are to be chosen without reference to political affiliation. No commissioner can hold an “office of profit” in the United States or the state of Iowa at the time of the appointment.
  • The Governor selects the chairperson of each commission among the gubernatorial and legislative appointed commissioners to serve a two-year term.
  • The terms of existing appointed and elective members of the state judicial nominating commission and district judicial nominating commissions will expire at 11:59p of the day this bill, if passed and signed into law, is enacted. The new appointed members will begin their terms at 12:00a the day after the law is enacted.

Tweaking the judicial selection process.

There are some changes in the law regarding the judicial selection process:

  • Judicial nominees only have to residents of the state to be nominated, not residents of the particular district in which they applied. They do have to become a resident before the start of their term and live in the district for the length of their term.
  • The bill outlines the application and interview process for judicial appointment applicants. The notice of the vacancy is to be public and posted on the Judicial Branch website. Copies of non-confidential application materials, list of nominees submitted to the Governor and Chief Justice, and schedule of interviews are made public and available online.
  • Commissioners are allowed to conduct individual interviews prior to applicants interviewing with the entire commission.
  • The Iowa Constitution does not prescribe the number of nominees the state judicial nominating commission sends to the Governor. Currently, it is three. This bill increases that number to five.
  • Currently, district judges select associate district judges. This bill will require those judges to go through the district judicial nominating commission and then be appointed by the Governor.

This bill also changes the selection process for the Chief Justice. Currently, the law states, “The justices of the supreme court shall select one justice as chief justice, to serve during that justice’s term of office.”

HSB 110 states instead that during the first meeting in an odd year, the chief justice is selected by a majority vote among the justices. The chief justice then serves a two-year term. The same person can serve consecutive terms. The bill also gives the chief justice the ability to resign from being chief justice while holding his or her seat on the Supreme Court.

A needed change.

This bill represents a shift from the status quo that over the past 57 years has unfairly favored progressives with an activist judicial philosophy as well as, given the legal community far too much influence over the court. As it stands now, including the chairperson, who is a judge, lawyers and people who were not placed on the commission by officials who are accountable to voters dominate every judicial nominating commission.

This process has resulted in the Governor having to decide in the past among two or three less than ideal choices.

The bill ensures equal representation of men and women. It still provides half of the commissioners are lawyers, but those accountable to the people will appoint them. This process also ensures that each major party will select at least some of the commissioners.

I also like both the executive branch and legislative branch having equal representation on the commissions and elimination of Senate confirmation. This will ensure the Governor will have the desired commissioners since the office lacks the ability to hand select the judicial nominees.

Eliminating the requirement for an appointee to live in a given district should open up the pool of eligible applicants which, hopefully, will mean a stronger pool of people from which commissioners can choose. Also, I don’t know if members of the commissions were not allowed to conduct individual interviews before, but a change in the law that clearly states that as part of the process is welcome. I am appalled at how relatively short the interviews judicial candidates have with the commission are. I’ve participated in a more stringent application and interview process as a youth pastor than the last Supreme Court applicants experienced.

Also, shortening the chief justice’s term will give members an opportunity to make a change if the make-up of the court changes. Giving the chief justice the chance to resign without leaving the court provides greater flexibility as well.

My preference is for Iowa to adopt the federal system of judicial appointments while keeping the retention vote, but that requires a change to the Iowa Constitution which is a tall order. This bill represents the next best thing.

Photo credit: Ctjf83 via Wikimedia Commons (CC-By-SA 3.0)

9 comments
  1. The frustrations of judicial activism are understandable but the current selection process produces many good conservatives as well, including 2 of the current justices on the Supreme Court (there were 3 before Judge Zager’s retirement). Iowa’s judiciary is refreshingly free of scandal and malfeasance. Insulating the process from politics on balance is a good thing for citizens of all persuasions. Where the Supreme Court oversteps, as in its recent abortion ruling, the legislature is always free to respond by statute or constitutional amendment.

    1. “but the current selection process produces many good conservatives as well,” — a system that produces the judicial atrocities the courts in Iowa have given us on marriage, on abortion and other matters is hardly amenable to conservative thought. The bar association essentially controls in practice and that operation is not dominated by conservative thinkers.

      “refreshingly free of scandal” – I guess you mean other than producing judicial atrocities. But somehow I doubt it is not subject to all the insider shenanigans, bias, political correctness, and good old boy stuff and a few things hushed up. I am not saying they are worse but for all we know they might be.
      “Insulating the process from politics on balance is a good thing for citizens of all persuasions” — it is not insulated from either political bias (just a little more obscure) nor judicial philosophy bias, whether associated with political party or not , which is the point of downgrading the bar association which is overwhelmingly so.
      “Where the Supreme Court oversteps, as in its recent abortion ruling, the legislature is always free to respond by statute or constitutional amendment.” By statute? To a Constitution finding (corruption) would be a nice trick (why has no one thought of it!!) and as regards “constitutional amendment” that is like saying “let them eat cake” as the burdens are so great the liberal biased court possesses the cat-bird seat.

    2. Thank you for the detailed explanation of this bill. However, the excuse of “judicial activism” is a tired phrase that those on the right are guilty of also. I see this as a reaction to the Varnum decision and a way to defend far right or ALEC sponsored legislation in courts that could be stacked with conservative justices. . Bottom line, if this is such a big deal, then allow for the people to weigh in by putting it on the ballot as an amendment to the Iowa Constitution.

      1. Please give an example of judicial activism in Iowa on the right.

        A constitutional amendment is unnecessary. This change favors neither party whereas the current method for selecting who will serve on the judicial nomination commissions gives undue influence to members of the Bar. Sorry, the members of the Bar shouldn’t have a controlling interest. That is insane.

    3. My primary concern Al is the controlling interest by members of the Bar. Our elected officials, not unelected members of the Bar, should decide who is on the judicial nominating commissions.

      1. All this talk about who in Iowa government or the Iowa Bar Association should nominate our judicial officers is pure nonsense. It is nonsense simply because it is in direct conflict with Section Two of the U.S. Constitution’s Fourteenth Amendment that asserts very concisely that States that do not elect their judicial officers by popular vote of the People in the State lose a proportion of Representation in the U.S. Congress, plain and simple. Study the Missouri Plan and you will find that it was developed and put into place by “progressives”. Yes, the “progressives” have made much progress in steering Missouri, Iowa, and many other States away from a Republican form of government. Look up the “Missouri Plan” on Wikipedia for starters.

      2. Dale, that doesn’t mandate judicial elections, it prohibits the disenfranchisement of a voter or group of voters. We do have retention elections, so in fact, we do vote for or against a judge. I’d like Iowa to emulate the federal system of judicial nominations but keep retention elections. There are all sorts of problems inherent with partisan elections of judges.

  2. Shane – I am totally with you. It is looney to give majority control of the commission to lawyers. As a branch of government it makes sense that both the executive and legislative branches , who are accountable to the people, to make the recommendations.

    1. Thanks, William. I think the idea of involving attorneys on the commissions is sound, but having members of the bar deciding who half of those members would be, not good.

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