Branstad Prepares for Justice Picking - UPDATED

The vote tossing out three Iowa Supreme Court justices was dramatic and overwhelming. But it sounds like the response of the the once and future governor, Terry Branstad, will be less so.

Branstad told reporter-types gathered for the Associated Press' annual Statehouse briefing that he expects to be the one who will name the replacements for those three high court slots. There's been some speculation that outgoing Gov. Chet Culver might do the selecting, but the timing of the process appears to point toward a Branstad triple-pick.

Branstad concedes that he'll have to pick from names submitted to him by the state Judicial Nominating Commission, which he also concedes is chock-full of Democrats. He hopes to fill the slots from a pool of  nine nominees, instead of getting three nominees for each individual seat. But that's up to the commission. The Democrat-dominated one. Yep.

He wants justices who believe, philosophically, in what he calls "judicial restraint." He'll be interviewing each of the nominees, with hopes of finding those special strict constructionist someone, although Branstad said it would be "inappropriate" for him to ask the judges about how they'd rule on specific issues. Like, oh, let's just say gay marriage.

Somewhere, as the governor spoke, a chill went up Bob Vander Plaats' spine.

Branstad wants to know how the would-be justices view the separation of powers, especially in cases when the court is asked to judge the constitutionality of laws passed by the Legislature and signed by the governor. I asked Branstad what he would consider to be the right answer to that question. He said he wants s justices who "respect the genius of our founding founders."

I suspect that all the nominees would say they respect the separation of powers from the bottom of their legal hearts.  But what does that tell you? Each case has a different set of facts and evidence, which, viewed against the law and Constitution, are supposed to form the basis for decisions, not some philosophythat makes politicians feel good.

And how do we know what Branstad will really ask? Nobody knows what goes on behind closed doors, after all.

Branstad, who appointed both the chief justice that just got tossed and the justice who wrote the Varnum v. Brien marriage ruling, admits it's an inexact science, this search for restraint.

""There's no foolproof system," Branstad said.

I think Branstad deserves some credit for his approach. He's dealing with an unusual, tumultuous circumstance like a responsible adult. He's prepared to play the hand he's being dealt, while also showing some respect for the courts and the nominating system.

I may not like all of his picks in the end, but at least he recognizes that it's best to move on and keep the court working. It seems sensible, at this hour.

So of course, the righteous right will be outraged. They're still clamouring for him to issue an executive order halting same-sex marriages. That would be classified under non-adult, non-sensible and non-legal solutions.

Branstad still wants to reform the judicial nominating commission to achieve party balance, which may or may not be done by legislative action. It could take a constitutional amendment to change the system.

There's a dispute over whether the constitution's wording prohibits commission picks based on party affiliation. The section at issue:

There shall be a state judicial nominating commission. Such commission shall make nominations to fill vacancies in the supreme court. Until July 4, 1973, and thereafter unless otherwise provided by law, the state judicial nominating commission shall be composed and selected as follows: There shall be not less than three nor more than eight appointive members, as provided by law, and an equal number of elective members on such commission, all of whom shall be electors of the state. The appointive members shall be appointed by the governor subject to confirmation by the senate. The elective members shall be elected by the resident members of the bar of the state. The judge of the supreme court who is senior in length of service on said court, other than the chief justice, shall also be a member of such commission and shall be its chairman.There shall be a district judicial nominating commission in each judicial district of the state. Such commissions shall make nominations to fill vacancies in the district court within their respective districts. Until July 4, 1973, and thereafter Due consideration shall be given to area representation in the appointment and election of judicial nominating commission members. Appointive and elective members of judicial nominating commissions shall serve for six-year terms, shall be ineligible for a second six-year term on the same commission, shall hold no office of profit of the United States or of the state during their terms,

There shall be a district judicial nominating commission in each judicial district of the state. Such commissions shall make nominations to fill vacancies in the district court within their respective districts. Until July 4, 1973, and thereafter unless otherwise provided by law, district judicial nominating commissions shall be composed and selected as follows: There shall be not less than three nor more than six appointive members, as provided by law, and an equal number of elective members on each such commission, all of whom shall be electors of the district. The appointive members shall be appointed by the governor. The elective members shall be elected by the resident members of the bar of the district. The district judge of such district who is senior in length of service shall also be a member of such commission and shall be its chairman.

Due consideration shall be given to area representation in the appointment and election of judicial nominating commission members. Appointive and elective members of judicial nominating commissions shall serve for six-year terms, shall be ineligible for a second six-year term on the same commission, shall hold no office of profit of the United States or of the state during their terms, shall be chosen without reference to political affiliation, and shall have such other qualifications as may be prescribed by law. As near as may be, the terms of one-third of such members shall expire every two years.

So do we adhere strictly to the "without reference" to politics wording, or do we see a loophole for activist legislative tinkering in "unless otherwise provided by law?" Sounds like the folks in legal need to kick this around.

But it may not matter because the guy who runs the Iowa Senate, Majority Leader Mike Gronstal, D-Council Bluffs, says he doesn't think the system is broken.

UPDATE -- Vander Plaats has called a news conference for 2 p.m. to talk about Branstad's remarks on the justices. I could be wrong, but I'm not ecxpecting hearty praise. We'll see.

VANDER PLAATS, The FAMiLY LEADER NEWS CONFERENCE ADVISORYThe FAMiLY LEADER Chief Executive Officer and Iowa For Freedom State Chair Bob Vander Plaats will hold a news conference at 2 p.m., Tuesday, Dec. 7 at The FAMiLY LEADER offices, located at 1100 N. Hickory Blvd. Suite 107 in Pleasant Hill.

The FAMiLY LEADER Chief Executive Officer and Iowa For Freedom State Chair Bob Vander Plaats will hold a news conference at 2 p.m., Tuesday, Dec. 7 at The FAMiLY LEADER offices, located at 1100 N. Hickory Blvd. Suite 107 in Pleasant Hill.

Vander Plaats will discuss Governor-elect Branstad's December 6 Iowa Supreme Court justice remarks.