Staff Columnist

In Iowa: State courts are an election sideshow - for now

Chief Justice Mark S. Cady listens to lawyers during oral arguments Feb. 14 on the Planned Parenthood v. Reynolds lawsuit at the Iowa Supreme Court in Des Moines. The court later struck down a law calling for a 72-hour waiting period for an abortion. “Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity,” Cady wrote in the 5-2 ruling. (Pool photo by Rodney White/Des Moines Register)
Chief Justice Mark S. Cady listens to lawyers during oral arguments Feb. 14 on the Planned Parenthood v. Reynolds lawsuit at the Iowa Supreme Court in Des Moines. The court later struck down a law calling for a 72-hour waiting period for an abortion. “Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity,” Cady wrote in the 5-2 ruling. (Pool photo by Rodney White/Des Moines Register)
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With campaigns battling to capture the Iowa governor’s office and Legislature, our third branch of government has been chilling on the sidelines, mostly out of harm’s way.

That’s good news, especially for those of us who watched three Iowa Supreme Court justices ousted in 2010 by conservative crusaders angered by the court’s unanimous, historic ruling for marriage equality. Another campaign aimed at booting Justice David Wiggins from the bench in 2012 failed.

Since then, no major effort has been launched to remake our Judicial Branch at the ballot box. There are no justices up for retention this fall. But that doesn’t mean the election doesn’t have implications for courts.

Just ask Sam Langholz, senior legal counsel and special adviser to Gov. Kim Reynolds. He told a conservative club in Urbandale in September that whoever wins the governor’s office could reshape the court for decades. The next governor could make multiple appointments, he said, and his boss, of course, would make the right sort of picks.

Otherwise, you could get the wrong sort of rulings, such as when the court affirms marriage rights for same-sex couples, puts limits on criminal punishments or overturns abortion restrictions.

“Someone who is going to follow the law and not make up the law, someone who is going to apply statutes as they’re written,” Langholz said, according to Iowa Public Radio. “I can’t overstate enough how important this election will be for the judiciary.”

Unlike would-be presidents, Iowa governors don’t usually campaign on promises to pick judges their supporters will like. That’s because Iowa has a merit-based selection process created expressly to insulate judicial picks from electoral politics.

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A 17-menber state Judicial Nominating Commission made up of governor’s appointees and lawyers, chaired by the most senior Supreme Court justice who is not chief justice, screens and interviews potential nominees. The commission forwards a slate of nominees to the governor, who makes the final pick. Justices then face periodic retention votes, which are, notwithstanding 2010 and 2012, usually uneventful.

Governors do tend to pack their share of commission appointees with loyal party members, and Reynolds is no exception. But the emphasis is on qualifications, not politics.

So this isn’t Washington, D.C., where an elected chief executive is the lone judge picker, with Senate advice and consent. It works great, aside from bitterly dividing the country and reducing the credibility of the U.S. Supreme Court to a smoldering pile of politicized rubble.

That’s said, it’s a pile of rubble now controlled by conservatives, ready and able to render the right sort of rulings, as mentioned above. Iowa’s Supreme Court is very different, and folks such as Langholz don’t like it. They’d like to change it.

Iowa’s court has justices Daryl Hecht, Brent Appel and Wiggins, all appointed by Democratic Gov. Tom Vilsack. It has justices Edward Mansfield and Thomas Waterman, appointed by Republican Gov. Terry Branstad in 2011 to replace the ousted justices, and Justice Susan Christensen, appointed by Reynolds this year. Chief Justice Mark Cady was appointed by Branstad 1.0 back in 1998.

Hecht, Appel and Wiggins, along with Cady as the court’s swing vote, have ruled, repeatedly, that Iowa’s constitution provides its citizens a stronger guarantee of equal protection under the law than the federal Constitution. And they’ve tied it Iowa’s judicial tradition of being ahead of the historic curve on expanding civil rights protections.

When the U.S. Supreme Court struck down mandatory life sentences for juvenile offenders, Iowa’s highest court ruled 4-3 that all mandatory minimum sentences for juveniles are unconstitutional.

Faced with an Iowa law requiring a 72-hour waiting period before a woman could have an abortion, the Iowa court didn’t fall back on the U.S. Supreme Court’s “undue burden” test to decide if the law passed constitutional muster.

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Instead, it declared a women’s decision to terminate her pregnancy is a “fundamental right” under Iowa’s constitution and ruled any attempts to restrict that right must clear the highest bar of constitutional scrutiny. Strong, landmark stuff.

“Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity,” Cady wrote in the 5-2 ruling.

Doesn’t bode well for the so-called “heartbeat” abortion limits signed by Reynolds this year.

Iowa’s judicial independence takes on important dimensions as the U.S. Supreme Court turns right. When the conservative Brett Kavanaugh court begins taking aim at liberal legal targets, such as abortion rights, labor protections and civil rights, the Iowa Supreme court may push back, shielding Iowans’ liberties under Iowa’s constitution.

But will the next governor really change the equation? Maybe, but maybe not.

If Reynolds wins, she might get more picks. But unless a justice makes an unscheduled departure, only one of the Democratic-appointed justices, Wiggins, is up for retention in 2020. So maybe he’ll be targeted by conservatives. But that’s been tried before.

If Democrat Fred Hubbell wins the governor’s race, the Judicial Nominating Commission will no doubt begin to look more Democratic. But Democrats are unlikely to target GOP-appointed justices. It’s simply not in the party’s playbook.

There’s always the Legislature.

Last year, the Iowa Senate passed a bill that would require a 5-2 court majority to declare a statute approved by the Legislature unconstitutional. Its backers were trying to get at those pesky 4-3 rulings, and make our state’s court system look like North Dakota’s. The Iowa House wisely took a pass, but who knows what happens next year if Republicans maintain control.

A pair of resolutions were filed by GOP legislators during the last General Assembly amending the constitution to toss out the merit system in favor of a federal model. They went nowhere. There also as been Statehouse rumblings about kicking lawyers off the nominating commission, leaving only gubernatorial appointees, but no action.

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So the courts remain a sideshow this fall. But as we’ve seen after controversial rulings and amid changing political winds, they can become the main event in a flash.

l Comments: (319) 398-8262; todd.dorman@thegazette.com

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