Des Moines Register. July 17, 2022.
Editorial: Leave judge selection alone — that means you, too, Iowa Democrats
Here’s an ideal worth preserving: Judges should be chosen without partisan politics in mind and then do their work in the same fashion.
Iowa is in danger of slipping further away from this ideal. And, yes, it’s an ideal, not a reality. Lay people with little knowledge of statutory interpretation and other legal mechanics can often predict the outcome of a case where Republicans’ and Democrats’ preferences are at odds: They just use “conservative” and “liberal” labels attached to each judge and count up votes.
This is especially true of the current U.S. Supreme Court, which, according to Gallup, has never in almost 50 years of polling had the confidence of less of the public than it does now, at 25%. That June survey was performed before release of several of the most momentous decisions of the just-completed term, including the reversal of Roe v. Wade, the landmark 1973 case that legalized abortion.
But consider how today’s membership of the nation’s high court was assembled. The last seven justices to join the nine-member court were picked by presidents whose party controlled the only body with any say on the matter, the U.S. Senate, and none earned the vote of more than a handful of senators in the minority party. Similar dynamics have played out for years in the nominations and confirmations of hundreds of federal lower-court judges.
For 60 years, Iowa has used a better system. For every judicial vacancy, a panel of Iowans — some appointed by the governor and confirmed by a two-thirds vote in the Iowa Senate, others elected by Iowa lawyers — accepts applications, interviews candidates and sends a few names for the governor’s unfettered selection.
The lawyers on nominating commissions bring practical experience and topical expertise to the work. Political appointees bring a measure of voter accountability. The commissioners serve six-year terms, meaning the commissions aren’t blown up every time the party in control changes. Governors can directly influence the direction of the courts through their choices, but only after the fields of candidates are substantially narrowed. The process is commendably transparent, with interviews streamed live and detailed applications released online. Unlike in the federal system, Iowans vote regularly on whether to retain judges and justices in office.
The process wasn’t broken before the Republican-controlled Legislature tinkered with it in 2019, proposing some seismic changes before settling on letting the governor nominate an additional person for the commission that selects candidates for the Iowa Supreme Court and Iowa Court of Appeals, and removing a sitting justice from the commission.
The process was dented but still wasn’t broken before Senate Democrats tried to make a point in May by torpedoing four of Gov. Kim Reynolds’ appointees to that statewide panel. One nominee had been confirmed 48-0 to a partial term in 2019. Another was rejected for the second straight year (inexcusably, Democrats offered no public explanation for voting down Derek Muller in 2021). This year, rather than consider the ample qualifications of each nominee, Democrats seized upon only their political views to claim that Reynolds was breaking a law that says “All commissioners shall be chosen without reference to political affiliation.”
That’s a stretch. First, in many discussions of courts, politicians, lawyers and observers go to some lengths to draw distinctions between “judicial philosophies” and political affiliations. However real those distinctions are, they are more than enough to sustain deference to any governor’s picks. Second, positions on the nominating commissions have for decades been, for practical purposes, spoils for members of the governor’s party. And even at that, the commissions still produce diverse slates of candidates. Take, for example, the panel that in January 2011, fully loaded with Democrat Tom Vilsack’s and Democrat Chet Culver’s appointees, offered up, from a field of 60 applicants, Edward Mansfield. Gov. Terry Branstad placed him on the Supreme Court. Last month, Mansfield wrote the opinion that weakened abortion rights under the Iowa Constitution.
Commissioners are volunteers. The slate Democrats rejected had impressive resumes, and they deserved the chance to serve out their terms.
Republicans have indicated they aren’t finished — they want judges excluded from nominating panels for lower-court vacancies and want another gubernatorial appointee added.
Leaders in each party would do well to back off, on both legislation and confirmation stunts. Each voluntary injection of politics into Iowa’s judicial selection represents an unwarranted chipping away of the ideal that the judiciary is an independent branch of government, not subject to the whims of elected officials.
After a flurry of vacancies on the statewide courts, only five people applied last month to replace Brent Appel on the Supreme Court. The previous 13 vacancies attracted an average of 16 applicants per spot. Many factors could be involved, but we hope nobody concluded that accomplished lawyers who don’t think like Reynolds would be wasting their time to apply.
As state and federal Supreme Court rulings have shown, judges decide the scope and permissibility of laws. They decide what rights all people do or do not have. Judges shouldn’t feel beholden to party bosses as they deliberate such weighty questions.