Addressing Objections to Judicial Selection Reform

Last week, I discussed why we need judicial selection reform in Iowa, to conclude this series I want to address objections I hear to doing this.

1. This is “politicizing the judiciary”

This objection is made by those who want to keep the status quo – a liberal bias in the selection process. The truth is the process is already politicized. Half the commission is made up of attorneys selected by the bar that is well-known to be a left-leaning special interest group. So obviously, there is a heavy liberal bias in the selection process. Attorneys are people just like anybody else: they have their political opinions and they sometimes make their way into their judicial decisions.

2. We could get unqualified judges if attorneys, who have firsthand working experience with the judge candidates, are left out of the process. 

Attorneys are still going to be an important part of the process since they will comprise half of the commission membership. The commission will still be able to benefit from their knowledge and expertise. The only thing changing is who will select these attorneys: it changes from a special interest group to We the People through our elected representatives.

3. This system for selecting judges that the people of Iowa put in place through constitutional amendment more than 50 years ago still is the best system in the country. 

This is another way of saying, “let’s keep the status quo.” When something is not working well, it’s time to change it.

4. We have merit-based selection and get good quality judges with the system we have now. Why change it? 

We will still have merit selection – that isn’t going away. We will still get good quality judges. Again, this is an argument for the status quo. Again if something is not working well, we change what’s bad and keep what’s good.

5. The Iowa Bar Association has many Republicans in it and even has many Republicans on the judicial nominating commissions so there is no left-leaning bias in the system. 

If there are really that many Republicans or conservatives in the bar, it has to be questioned how effective they are because they are definitely not making their voices heard. Otherwise why would we have such liberal judges and why, according to a recent study, are Iowa courts considered the 2nd most liberal court of all the states compared to our electorate? The liberal views of the American Bar Association do filter down to the state bar association, just as the liberal views of the National Education Association filter down to the state education association.

6. I know people who serve on those commissions, and they say there is no problem with the process. / I have served on these commissions, and I have seen no problem with the process. 

Again, if there is no problem why are we ending up with courts so liberal that Iowa courts are rated 2nd most liberal compared to other states? It makes one wonder when we vet candidates are we really getting to the heart of the candidates’ judicial philosophy: How closely do they think they need to adhere to the law or do they think they should interpret it loosely?

7. We can’t go around changing the system just because of a court decision we don’t like. 

That depends on why you don’t like court decisions. If it’s because they follow the Constitution and the law and the result is not good for Iowans, then, of course, we wouldn’t like the decision, but it would point out that a law is not good for Iowans and needs to be changed and the legislature could then come in and change it. But if it’s because they take too many liberties with the Constitution and the law, that’s a whole different reason. In that case, of course, we wouldn’t like those decisions (although some might like them), but the solution instead of “chasing” after the court to rein them in with passing laws, we need to take steps to get on the bench judges who will adhere to the Constitution and the law. And that is the problem we have now, and that is what the judicial selection reform bill, while not perhaps not perfect, takes steps to resolve. A recent study found, when states have systems like ours make changes that we propose, more conservative judges are appointed who are a better fit politically with the people of their state.

Conclusion

I think removing a special interest group from selecting half our judicial nominating commission and replacing that with the legislative appointments (half from the majority party and half from the minority party) will give Iowans, through our elected representatives,  a more significant voice in who selects our judges. The judicial selection reform bill has passed out of the House Judiciary Committee and is ready for debate on the House floor.

This is part two of a two-part series. Read part one here.