Government

Iowa's way of picking judges under GOP scrutiny

Lawmakers look at ways to give governor more influence

Iowa Supreme Court Justice Susan Christensen hugs her husband, Jay Christensen, after he helped her put on a judicial robe that once belonged to her father — the late Justice Jerry Larson — during a public ceremony Sept. 21 in the Judicial Branch Building in Des Moines. She is Gov. Kim Reynolds’ first pick for the state Supreme Court and became the first woman on the court since 2010. (Matthew Putney/Freelance)
Iowa Supreme Court Justice Susan Christensen hugs her husband, Jay Christensen, after he helped her put on a judicial robe that once belonged to her father — the late Justice Jerry Larson — during a public ceremony Sept. 21 in the Judicial Branch Building in Des Moines. She is Gov. Kim Reynolds’ first pick for the state Supreme Court and became the first woman on the court since 2010. (Matthew Putney/Freelance)
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DES MOINES — Judges in Iowa’s courtrooms are chosen by a system widely praised as one that curtails the role of politics in the process.

That system may change, however, as legislators discuss tweaks that would give the governor more power in the process, and Gov. Kim Reynolds signals she is open to the idea.

Republicans in support of making a change say the current system gives lawyers too large of a role in the nominating process, to the detriment of the public. But legal experts say altering the nominating system would not be wise.

“I just think tampering with that formula is an extraordinarily bad idea,” said Jerry Anderson, dean of Drake University Law School.

Iowa judges are selected by a merit-based process written into the state constitution. A nominating commission interviews and vets candidates, then provides a list of recommendations to the governor, who appoints one of the finalists to the bench.

Each of Iowa’s 14 judicial districts has an 11-member nominating commission, and there is a separate commission of 17 members at the state level for nominations to the Iowa Supreme Court and state appeals court.

The state commission consists of eight lawyers elected by their licensed peers in Iowa, eight members of the public appointed by the governor and confirmed by the Iowa Senate and a chair who is the most senior member of the Iowa Supreme Court who is not the chief justice.

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After judges or justices are appointed and serve part of their terms, they stand for retention — giving voters the chance to keep or remove them from office.

The merit selection process was enshrined in the Iowa Constitution in 1962. As with all state constitutional amendments, the merit selection process had to be approved by separate sessions of the Iowa Legislature and then by Iowa voters.

With Republicans controlling the Iowa House, Iowa Senate and governor’s office for at least two more years, changes are being discussed.

“There are several people in our caucus that have made this a priority and have looked at our system,” said Jack Whitver, leader of Iowa Senate Republicans. “Frankly, over 20 years-plus there have been a lot of decisions that legislators feel conflicted with what they wanted to do, or their intent. This is a long-term issue that several in our caucus want to start looking at.”

Republicans have watched as, in the past decade, the Iowa Supreme Court has made same-sex marriage legal — years before the U.S. Supreme Court did the same — and struck down Republican-written laws that attempted to require a three-day waiting period before a woman could get an abortion, and ban the use of telemedicine in abortions. Another abortion-related law — one that would ban them after a heartbeat can be detected — is in the court system now and is expected to reach the state’s high court.

In 2010, voters removed three state Supreme Court justices who were up for retention that year and who were part of the unanimous ruling that legalized same-sex marriage.

The campaign against the justices was led by social conservative Bob Vander Plaats, a Republican who has run unsuccessfully for governor.

Earlier this year, Gov. Reynolds appointed the first woman to the Iowa Supreme Court since that 2010 vote. The state commission now is seeking candidates to vet for another state Supreme Court vacancy, which Reynolds also will fill.

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Making changes to the merit selection process would require a constitutional amendment. Republican legislative leaders say that is unlikely, but they could consider changes to the nominating commissions.

Those legislative leaders think lawyers and the Iowa State Bar Association have an outsized role in the process, which suggests legislators may consider changing the makeup of the commissions. A bill filed last session in the Iowa Senate would have removed lawyers from the nominating commissions and replaced them with gubernatorial appointments instead.

“I envision us to continue to have a merit-based system, which is what many people say is what’s good about the Iowa process,” Whitver said. “Right now the (state) commission is made up of eight lawyers that are only elected by lawyers. So the general public has no say in who those people are. ... So maybe balancing that out so normal citizens have a greater role than just attorneys.”

Linda Upmeyer, the Republican Iowa House speaker, said members of her caucus also have expressed interest in changing the process.

“I think the goal at the end of the day is just to make sure that there’s not a single entity that has sort of an outsized weight in how that’s done. If there are people in Iowa that would like to seek a judgeship but there’s no path for them, then that may not be the way we want to go,” Upmeyer said. “We may want to just make sure that there’s good balance there so that people get consideration and that the governor has a group of people that she can choose a judge from that at least shares her world view.”

To Anderson, that sounds like an attempt to make judicial selection political — which is what the current system was created to avoid.

“It’s basically to politicize the process. That’s how I read that. And that’s exactly what we don’t want,” Anderson said. “We have a judiciary that I think is the best in the country in terms of quality from top to bottom. Why would you mess with the process that has produced that quality of judges?”

Experts said the balanced makeup of the nominating commissions is appropriate because lawyers and members of the public bring different perspectives to the application process, and that it is important to have lawyers on the commissions because they have firsthand, working experience with the candidates in the courtroom.

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Other Iowa legal experts and lawyer groups also said changing the judicial nominating process would be unwise.

“The 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 for putting qualifications, temperament and experience ahead of politics. As a result, we have the best judges in the country,” Saffin Parrish-Sams, president of the Iowa Association of Justice, said in an email. “Shifting control to the political branches of government will only inject politics into the courts, and it will weaken our system of checks and balances.”

Tom Levis, president of the Iowa State Bar Association, pushed back at the suggestion the group has an overly influential role in the nominating process. He said lawyers from regions across the state vote on the lawyers who are placed on the commissions.

“Injecting politics into this process of selecting our judges is crazy. It’s exactly why we got merit-based selection back in 1963, to get politics out of it,” Levis said. “There isn’t anything that’s broken. We’re getting good judges, good, quality judges. I think it’s just a terrible mistake ... to try to change the process for nominating judges.”

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