Study: Lawyers have too much influence on judge selection

A Vanderbilt law professor who studies judicial selection suggests lawyers shouldn't be part of the nominating commission, or if they are, they shouldn't be elected by members of the bar.

Law professor Brian Fitzpatrick said lawyers are viewed as a special-interest group and may select judges who further their interests, whether it be political, financial or ideological. He questions whether members of the bar have too much control over who becomes a judge or justice.

Guy Cook, a Des Moines lawyer and member of the State Nominating Commission, said lawyers aren't a “unified special-interest” group. Politics or party affiliation doesn't influence the search for best candidates, he said.

“Lawyers do have a common goal of ensuring judges are selected who are the best qualified, with highest integrity and greatest temperament,” Cook said.

Coleen Denefe of Ottumwa, a lay member of the State Nominating Commission, said lawyers are vital to the commission. They help evaluate writing samples of applicants' opinions and rulings, and lawyers have gone before applicants from District Court or Appeals Court and can say whether they are efficient and can evaluate temperament.

“I think opening up election of lawyers to the public would be allowing special-interest groups influence,” Denefe said.

Merit selection has become a hot topic of debate in Iowa, as well as other states, after last year's retention election in which three Iowa justices - Chief Justice Marsha Ternus and Associate Justices Michael Streit and David Baker - were voted out because they were part of the 2009 ruling that legalized same-sex marriage.

Cook and Fitzpatrick have participated in recent panel discussions in Iowa and Kansas regarding merit selection and the judiciary.

The Kansas House on Friday passed a bill that would do away with a nominating commission altogether in the appellate court process. Instead, like the federal model, the governor would select judges, and they would be confirmed by the state House and Senate.

Stephen Ware, University of Kansas Law School professor, testified before the House judiciary committee in support of the bill. Ware also follows Fitzpatrick's reasoning that lawyers have too much power on nominating commissions.

“In a democracy, a lawyer's vote should not be worth more than any other citizen's vote,” Ware, a member of the conservative-Libertarian Federalist Society, told the committee last week.

There is a similar proposed bill in Iowa that would change the merit system to be more like the federal system, and some favor the idea of changing the way lawyers are elected to nominating commissions.

“Judges make decisions that affect many people, so why should lawyers get their say?” said Fitzpatrick, also a member of the Federalist Society. “Judges make laws at their discretion. Most laws are vague, from constitutional to common law. Doctrines are invented by judges.”

Fitzpatrick conducted a study of merit selection focusing on his home state, Tennessee, and Missouri over a 13-year period, concluding in 2009. He wanted to see if merit selection was a better system, as proponents say, because bar members focus on merit and not politics.

He admits in the study to being skeptical about politics being removed in the merit selection process.

“I looked at the allegations made about the legal profession who tend to pick more judges who are liberal,” he said. “I wanted to see if lawyers were more affiliated with the Democratic Party.”

Fitzpatrick found two-thirds of the nominees in Tennessee were Democrat and in Missouri more of the nominees gave campaign contributions to Democrats.

Fitzpatrick said in the end he believes lawyers should be part of the commission but how they are elected should be changed.

“If the governor and legislators pick the lawyers, it should reflect preferences of the public because that's who they work for, but if it's the bar who picks, then it would reflect preferences of lawyers,” he said.

Tim Semelroth, a Cedar Rapids lawyer and member of the District Nominating Commission, said merit selection works well because the laypeople bring their personal and professional experience and the lawyers bring their legal experience to choose the best candidates.

“I think it takes all those experiences to make the best selection,” Semelroth said. “If the governor appoints laypeople and lawyers, how is that keeping politics out? The terms (for commissioners) are six years for a reason, so one particular governor can't exert undue influence over the commission. The system is designed so all the terms are staggered.”

Denefe said politics have never come into decisions for nominations, and she never knew the lawyers' or other lay commissioners' affiliations until the media reported that the majority were registered Democrats.

“In my five years and 11 months, I never felt anyone came with an agenda,” said Denefe, whose term ends in April. “Lawyers don't line up to do this. I'm sort of relieved it's at the end (of term). I've never felt under the gun and under fire until this time.”

Fitzpatrick said only about seven states have power to select lawyer members without bar influence, and Massachusetts is the only state that doesn't have any requirements about having lawyers on a commission.

Last year, Tennessee became the only state in recent times to amend its law to say lawyer members will not be selected by the bar.