Panel discusses good and bad of judicial retention system

All agree slight improvements could be made

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The discussion Wednesday focused on the good, the bad and the confusion, depending on perspective, of the judicial retention and selection system in Iowa.

Three panel members said the current merit system works. It keeps politics out of the judiciary and allows the judges to be fair and impartial, unlike some states where judges are elected and rule according to campaign contributions. But all agreed there could be slight improvements.

One panel member said it’s a “flawed” system, lawyers have too much power and judicial activism exists. The state system should be more like the federal system where the senate has a up or down vote, or give the governor more choices than three candidates.

About 50 residents attended the panel discussion sponsored by the Linn Law Club and Impact CR at the National Czech and Slovak Museum and Library. The audience submitted about 15 questions to the panel.

The panel members were: Former Iowa Supreme Court Justice David Baker; former member of State Nominating Commission and Steven Pace, attorney with Shuttleworth &Ingersoll; former U.S. Attorney Matt Dummermuth, attorney with Whittaker, Hagenow & Gustoff; and Pat Baird, former CEO and president of Aegon USA.

Most of the questions concerned how to keep politics out of the system, a few questions about the same-sex marriage ruling, how to improve the system and the judicial rating by the Iowa Bar Association of Justice David Wiggins.

Pace said political affiliation never comes into play for the commission when selecting candidates. The commissioners considered the person’s intelligence, good judicial temperament and experience.

“We never knew the political parties (of commissioners) until it was in the news and the lawsuits were filed (after the Varnum decision),” Pace said. “The three chosen would be the best candidates. Commissioners don’t manipulate the process.”

Dummermuth said politics are involved because it begins with who selects the three candidates. Lawyers have a privileged role and they don’t “share the politics of the general population. They usually are more liberal.

Dummermuth said one of the flaws in the system is that it lacks political accountability in the judicial process.

“It’s not really the governor’s appointment because he had to choose from the three, the legislature isn’t involved and there’s no open debate (about candidates),” Dummermuth said.

Baker said this controversy over the judiciary and the campaign to get Justice Wiggins removed is all about the Varnum case which opened the door to legalizing same-sex marriage.

“Judges take an oath to uphold the law and judges are being targeted for doing just that,” Baker said. “Applying the rule of law is the role of the judiciary.”

Baker said the judiciary upholds the Iowa Constitution and if the people want to change the constitution then it’s up to the legislature to bring an amendment.

Baker talked about the Varnum decision, saying all seven justices agreed the state Defense of Marriage Act was unconstitutional because it violated the equal protection clause and didn’t allow marriage civil unions. He knew it might not be a popular decision but it upheld the constitution.

Dummermuth said even seven can get it wrong and it’s wrong of the Iowa Bar Association to say there’s no judicial activism. “Why would we assume they (judges) wouldn’t get it (rulings) wrong sometimes. I think the public didn’t buy the decision that the court had the authority to do it.”

Baird, the “token non-lawyer,” as he called himself, had a different perspective from the others because he looked at the issue from the business standpoint. He has dealt with hundreds of litigation actions and issues at Aegon over the years, and when considering which state would be good for the company he considers cost and quality of labor, fairness of regulations and fairness of legal system.

“We wouldn’t have built here without the merit system,” Baird said. “The merit system is designed to keep politics out. It’s not perfect and probably could be improved but if you let politics into the judiciary, you endanger economic development and job retention.”

Baird said he was embarrassed over the 2010 vote to oust three Supreme Court justices. He said he took a lot of flak from friends who didn’t understand how Iowa ousted three justices and let outside political money influence the 2010 election. In talking with people since the 2010 retention election, he believes they thought it was a political vote and didn’t understand they were making the judiciary political.

Baker said people need to see the courts at work and to understand why there is a retention system.

“It’s not to express a political view,” Baker said.

Pace said if Wiggins is ousted, this will continue to happen every time a group isn’t happy with a ruling and the way to keep politics out is to vote “Yes” Nov. 6.

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