Judicial Selection Flawed, but Better than the Alternatives

For some reason, my Sunday print column didn't post yesterday, so here it is. Sorry to online only readers for some rehash from my earlier web post on this topic.

Iowa's Supreme Court will be back to full-strength soon. I know that's a load off your mind.

But for those of us who closely followed last year's judge-tossing, retention drama, Gov. Terry Branstad's appointments to fill three vacant court seats is an important milepost.

Branstad picked Court of Appeals Judge Edward Mansfield of Des Moines, Pleasant Valley lawyer Thomas Waterman and District Judge Bruce Zagar of Waterloo. They replace a former district judge, a former court of appeals judge and a former lawyer appointed to the Supreme Court by Branstad. Not exactly a judicial revolution.

But after all the drama, no-drama seems welcome. Mansfield, Waterman and Zager all have loads of experience. I watched their public interviews with the Judicial Nominating Commission and they seem thoughtful and knowledgeable. They each rejected the notion that justices should consider public opinion in their rulings. Good to know.

For culture warriors dreaming of a court that will hand them victory after victory in their battle against modernity and equality, these guys are a disappointment. The highly sensitive litmus-test ears at Iowa Judicial Watch heard them use words such as “empathy” and “progressive.” Gasp. Waterman wrote of how the law “cannot remain static.” Not even his $7,500 in campaign contributions to Branstad can erase this taint of such activism.

On the other side, there is regret that the court is now an all-male club. I share that disappointment, but the commission nominated just one woman, University of Iowa law professor Angela Onwuachi-Willig, an impressive legal mind and a vocal supporter of same-sex marriage. TB predictably passed. Too bad.

But really, isn't it about time middle-aged white guys got a chance to run this state? I say it's our turn.

Am I entirely pleased with this process? Not really.

The commission opened its interview sessions with 61 candidates, but I think it was mostly for show. When the interviews concluded, it took the panel less time to pick nine finalists than I'd take buying a new television. Clearly, the real selecting was done behind the scenes in private.

The public interviews also were full of softball questions and chummy exchanges between lawyers and judges who know each other pretty well. I'm all for being friendly, but I would have liked the questioning to be much tougher. What happened to the art of cross examination?

Branstad refused to open up any portion of his interviews with the final three, arguing that he might have to ask them delicate questions the public shouldn't hear. That's a lame argument for closure.

So in the end, Iowans know too little about why these three men, out of dozens, got seats on the highest court. For all the talk of more openness to restore the court's damaged image, much more is needed.

Despite those flaws, in the end, the process produced three qualified nominees who will likely make good justices.

For all the talk about Democratic domination of the commission, our three new justices are all registered Republicans.

And it's still preferable to making judges into electioneering, poll-watching vote-chasers, or changing Iowa's judge-picking to look like the dysfunctional federal process, with its pitched partisan warfare and mounting, crippling judicial vacancies.

We have a good process that's served us well for nearly 50 years. It should be improved and opened, not scrapped.

And good luck to the new justices, who face their own retention drama next year.

Comments: (319) 398-8452; todd.dorman@sourcemedia.net