Statehouse Republicans have apparently “narrowed” their plan to make Iowa’s judicial selection process a wholly owned subsidiary of Big Politics, Inc.
Forget the district courts. Republicans now want only to control the State Judicial Nominating Commission, which selects nominees for the Iowa Court of Appeals and Supreme Court. That commission currently has eight members appointed by the governor — all Republican — and eight elected by licensed attorneys, including five Democrats and three Republicans, according to a Gazette review of commission membership.
But an 11-5 advantage is not enough. Republicans would toss out lawyer-elected members and instead hand those picks to partisan legislative leaders. With the GOP House speaker and Senate majority leader each getting two commission picks, the Republican edge would grow to 12-4. The Supreme Court also picks one commissioner under the revised bill.
More importantly, for the first time in five decades, all but one of the commissioners will be picked by politicians. And unlike the current system, none of the picks would be subject to Senate confirmation, removing any and all barriers to filling the panel with strident partisans.
At least half would still be attorneys, but attorneys picked by partisan officials.
And forget this talk of a “narrow” bill. The Supreme Court has been the prime target all along.
That’s been the case for the last decade, ever since the Supreme Court struck down Iowa’s ban on same-sex marriage with its 9-0 Varnum decision. Conservatives made exceedingly weak legal arguments before the state’s highest court and got trounced.
So, naturally, they declared war on the court. The Family Leader and other culture war crusaders campaigned successfully to oust three Supreme Court justices in 2010.
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Just weeks after that victory, conservative lawyers filed a lawsuit in U.S. District Court in Des Moines hoping to overturn part of Iowa’s judicial selection process. It was filed by a law firm then known as Whitaker Hagenow. That’s Matt Whitaker, of acting U.S. Attorney General fame, and Chris Hagenow, who is now the Iowa House majority leader. One of the firm’s attorneys involved in the case is Bill Gustoff, who is a member of the Republican Party of Iowa state central committee.
But the leading legal light in the effort was James Bopp Jr., a conservative Indiana attorney. He’s most famous for bringing the lawsuit that led to the U.S. Supreme Court’s landmark Citizens United ruling blowing up constraints on campaign bucks.
They argued allowing Iowa attorneys to elect members of the State Judicial Nominating Commission violated the rights of nonlawyer Iowans excluded from those elections under the 14th Amendment of the U.S. Constitution. They insisted the state could show no rational basis for such an exclusion.
More trouncing followed. On Jan. 19, 2011, U.S. District Court Judge Robert Pratt dismissed the lawsuit.
“It’s conceivable that the people of Iowa, when they chose to adopt the current judicial selection system, believed that attorneys were not only better able to select judges, but also better able to select commission members from their peers,” Pratt wrote in his ruling.
Pratt also ruled that the state has a legitimate interest in decreasing the role of politics in its selection process by ensuring some commissioners are chosen by Iowans not involved in “the political branches of government.” That’s the executive and legislative, for now.
So they took their case to the U.S. Court of Appeals for the Eighth Circuit. On April 8, 2012, a three-judge panel, comprised of judges appointed by Ronald Reagan, George W. Bush and Bill Clinton, affirmed Pratt’s ruling. They, like Pratt, easily found a legitimate state interest served by having lawyers elect members of the nominating commission.
Later that year, the U.S. Supreme Court declined to take the case.
In the middle of all of this, then Gov. Terry Branstad tried to appoint Gustoff to the state nominating commission. He was rejected by the Senate. His firm, now called Hagenow & Gustoff, also includes Senate Majority Leader Jack Whitver. Perhaps Whitver can appoint Gustoff to the nominating commission once the GOP bill passes. No Senate confirmation will get in the way.
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So this has been a decadelong effort to change the way judges are picked with hopes of controlling the Supreme Court. It’s been the “narrow” focus all along.
The contention our current system shuts Iowans out of the process lost bigly in court. Republicans could allow those same Iowans to vote on a change through a constitutional amendment, but they fear failure. A recent Des Moines Register Iowa Poll found 54 percent of Iowans support the current system, with just 33 percent in favor of change.
So they’ll ram a bill through the Golden Dome of Wisdom, where shoddy arguments, thin evidence and dubious claims are espoused and accepted daily. The Family Leader is cheering them on.
The goal is not a more accountable process. The goal is - once again, with feeling - to pack the commission with political appointees who will then deliver a court far more to Republicans’ liking.
They want a Supreme Court that won’t do something unacceptable, like extending civil rights protections to Iowans, safeguarding our civil liberties or overturning reckless legislation. They envision a court where their weak cases, at long last, won’t get trounced.
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