Branstad names Mansfield, Waterman and Zager to Iowa Supreme Court

Governor Terry Branstad today named Edward Mansfield, Thomas Waterman and Bruce Zager to fill the three Iowa Supreme Court vacancies created by last November’s judicial retention vote. Mansfield practiced law in Des Moines for many years before Governor Chet Culver appointed him to the Iowa Court of Appeals in 2009. Waterman has long been an attorney in private practice in Pleasant Valley. Zager practiced law in Waterloo before Governor Tom Vilsack named him to the First District Court in 1999. He “spent 18 years in private practice and served part time as a Black Hawk Assistant County Attorney for 12 years.”

KCCI posted Mansfield’s interview with the State Judicial Nominating Commission here, Waterman’s interview here and Zager’s interview here. Branstad privately interviewed the nine finalists for the Supreme Court vacancies last week. The governor’s official statements announcing all three appointments are after the jump.

All three appointees are registered Republicans. Waterman has made the most political contributions, primarily to Republicans, and his $7,500 donation to Branstad’s gubernatorial campaign attracted some media attention last month. (Waterman also gave $250 to the attorney general campaign of Brenna Findley, who is Branstad’s legal counsel.) Asked whether the donation to his campaign made him uncomfortable, Branstad joked, “No, I think that’s great […] Listen I wish more of them had contributed.” He added that private citizens “have a right to contribute and participate in the political process,” and that Waterman’s donation would not influence his decision.

In a statement, Supreme Court Chief Justice Mark Cady praised the three appointees as well as Branstad and members of the judicial nominating commission. I’ve posted that statement after the jump. Cady’s colleagues chose him as chief justice after voters rejected Marsha Ternus, David Baker and Michael Streit. Once Mansfield, Waterman and Zager are sworn in, all seven Iowa Supreme Court will hold a new election for chief justice.

Although all the appointees are qualified, I find it disappointing that Iowa will have an all-male Supreme Court for the first time since 1986. The only woman on the short list, University of Iowa law professor Angela Onwuachi-Willig, had many qualifications but had no chance of being appointed by Branstad, for obvious reasons I discussed here. In fact, the governor didn’t even pretend to think seriously about appointing Onwuachi-Willig. Before interviewing the finalists, he publicly expressed regret that the State Judicial Nominating Commission didn’t send him more women candidates.

I share Cris Douglass’ view that including only one woman on the short list sent to Branstad reflects poorly on the nominating process. After the jump I’ve posted excerpts from a guest column Douglass published in the Des Moines Register on February 4. She notes that the men and women who applied for Iowa Supreme Court vacancies had comparable experience and backgrounds, yet the men had a far better chance of becoming finalists. Seeing highly qualified woman applicants passed over gives the impression that either commissioners had a conscious or unconscious bias toward male applicants, or perhaps that some sought to force an embarrassing choice on Branstad. He appointed both previous women who have served on Iowa’s high court (Linda Neuman and Marsha Ternus) and likely would have appointed a woman if any politically palatable female candidate had been a finalist.

Adding three Republicans to the state Supreme Court is unlikely to end legislative efforts to reform Iowa’s judicial nominating process or restrict the Supreme Court’s powers. More on that in a post to come. Share any comments related to the Iowa Supreme Court in this thread.

UPDATE: I’ve added below the statement from former Iowa Lieutenants Governor Sally Pederson and Joy Corning on behalf of the Justice Not Politics coalition. That nonpartisan coalition supports keeping the merit selection system Iowa has used for choosing judges since 1962. Justice Not Politics leaders recently submitted more than 3,200 signatures to Iowa House and Senate leaders calling for an end to “any conversation about impeaching Supreme Court justices.” Some conservative Republicans have advocated impeaching the four remaining justices who concurred in the 2009 Varnum v Brien ruling on marriage. The effort is unlikely to clear the Iowa House Judiciary Committee.

SECOND UPDATE: The Des Moines Register notes that Iowa is now one of only three states with no women on its highest court. In an interview, Branstad “declined to answer a question about whether he’d received a satisfactory list of candidates from the commission.”

That same Des Moines Register article quotes Iowa House Judiciary Committee Chairman Rich Anderson as praising the state’s “great judicial merit selection process.”

At the bottom of this post I’ve added more reaction to the Mansfield, Waterman and Zager appointments.

Statements from Governor Terry Branstad, February 23, 2011:

(DES MOINES) – Gov. Terry E. Branstad today at 2 p.m. appointed Thomas Waterman to the Iowa Supreme Court.

Gov. Branstad selected Waterman from the slate of nine candidates given to him by the Iowa Judicial Nominating Commission. By law, the governor is only allowed to choose justices from this list.

“It is the role of the judiciary in the state of Iowa to say what the law is, as applied to cases before the courts, rather than saying what the law should be,” said Branstad. “The separation of powers is central to our Iowa Constitution.”

Branstad said Waterman, of Pleasant Valley, brings private sector experience to the Supreme Court.

“My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers,” said Branstad.

Gov. Terry E. Branstad today at 2:05 p.m. appointed Iowa Court of Appeals Judge Edward Mansfield to the Iowa Supreme Court.

Gov. Branstad selected Judge Mansfield from the slate of nine candidates given to him by the Iowa Judicial Nominating Commission. By law, the governor is only allowed to choose justices from this list.

“It is the role of the judiciary in the state of Iowa to say what the law is, as applied to cases before the courts, rather than saying what the law should be,” said Branstad. “The separation of powers is central to our Iowa Constitution.”

Branstad said Judge Mansfield, of Des Moines, brings both private practice experience and Court of Appeals knowledge to the Supreme Court.

“My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers,” said Branstad.

(DES MOINES) – Gov. Terry E. Branstad today at 2:10 p.m. appointed Iowa District Court Judge Bruce Zager to the Iowa Supreme Court.

Gov. Branstad selected Judge Zager from the slate of nine candidates given to him by the Iowa Judicial Nominating Commission. By law, the governor is only allowed to choose justices from this list.

“It is the role of the judiciary in the state of Iowa to say what the law is, as applied to cases before the courts, rather than saying what the law should be,” said Branstad. “The separation of powers is central to our Iowa Constitution.”

Branstad said Judge Zager, of Waterloo, brings both private practice experience and District Court knowledge to the Supreme Court.

“My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers,” said Branstad.

Statement from Iowa Supreme Court Chief Justice Mark Cady, February 23, 2011:

“My colleagues and I are pleased with the Governor’s appointments to the court. The three appointees possess the qualities essential for judicial office: integrity, keen intellect, solid legal experience, and most important, respect for fair and impartial justice — the hallmark of Iowa’s court system. We look forward to working with the new justices and we welcome them to the court.

“In addition, we commend the members of the State Judicial Nominating Commission for the time and effort they devoted to screening the applicants for the court, for their continued commitment to the principles of merit selection, and for sending the governor a slate of nine, high-caliber nominees. “

Excerpt from February 4 Des Moines Register editorial by retired attorney Cris Douglass: “Why weren’t more women picked by judicial commission?”

The commission provided a historic degree of openness and public access, through posting applicant names, resumes and other important information about them on the Iowa courts website and encouraging public attendance at applicant interviews (which were also streamed online). Despite these laudable efforts to better inform the public about the judicial selection process, something in the process is still deficient.

Of the 60 applicants, 10 were women and 50 were men. Of the nine finalists, however, one was a woman and eight were men. I read all of the applicant resumes posted on the court’s website, watched many of the interviews and learned the following about the women who applied:

The 10 women applicants had from 13 to 36 years of legal experience. Two had taught at Drake Law School. One applicant had been appointed Iowa’s first female Workers Compensation Commissioner. Another applicant had been a district court judge for 15 years, in private practice for the preceding 15 years, the Monroe County Attorney before that and is a past-president of the Iowa Judges Association. Another applicant has been on the Iowa Court of Appeals for 15 years and also has 13 years of private practice experience in her 28 years as an Iowa lawyer. One applicant with 20 years’ experience as a lawyer holds three degrees: a Bachelor’s degree, a Master of Public Administration and a Juris Doctor, all awarded with highest honors. She has an extensive record as a state attorney as well as having been in private practice.

The male applicants have similarly impressive backgrounds and experience. But if intelligence, experience and credentials are roughly equal between the applicants, why did the commission include only one woman on the list of nine finalists? During the interviews, individual commission members stressed the importance of geographical balance on the Supreme Court. No one, however, stressed the importance of gender balance.

Justice Not Politics’ Statement on Governor Branstad’s Supreme Court Justice Appointments

Justice Not Politics Co-Chairs Fmr. Lt. Governors Sally Pederson and Joy Corning released the following statement on Governor Terry Branstad’s announcement of the three Supreme Court nominees:

“Governor Branstad’s choice of Thomas Waterman, Judge Edward Mansfield and Judge Bruce Zager to fill the vacancies on the Iowa Supreme Court is an example of Iowa’s top-ranked system of selecting judges at work. We appreciate the Governor’s recognition of the merit selection system and his faithful execution of the process.

“Justice Not Politics believes the increased transparency of selecting the Justices helps to give Iowans more confidence in the process and the candidates, and we are confident Iowans will reject any attempts to politicize this process in the future.”

Justice, Not Politics is a broad based, nonpartisan coalition of organizations and Iowans across the political spectrum —- progressive to conservative; Republicans, Independents and Democrats —- all who are committed to protecting Iowa’s courts and our system of merit selection and retention.

From the February 24 Des Moines Register story by Jens Manuel Krogstad and Tom Witosky:

Branstad said he didn’t ask any of the candidates about specific cases, such as the same-sex marriage ruling. “I asked questions about judicial philosophy, not about individual cases,” he said. […]

As a result of the selections, Iowa is one of three states without a female justice. […]

The situation could have been avoided if more women had been named as finalists, said California Judge Marjorie Laird Carter, president of the National Association of Women Judges. […]

Guy Cook, a lawyer who served on the nominating commission, said he was disappointed more women did not apply.

The commission sought finalists with the best legal minds who also possessed integrity and good judicial temperament, he said.

“If women happen to fall in that category, so much the better,” he said. […]

Cheryl Weber, a Waterloo attorney, has known Zager for 28 years and said his background of having his own small firm and serving as a district judge has prepared him well.

“He is going to be a very fair judge and very much a team player,” Weber said.

She also said Zager can withstand public criticism.

“He will make the decision based on how he interprets the law and based on what he and his colleagues feel is appropriate,” Weber said. “I don’t think public scrutiny will negatively affect him in any way.” […]

[State Senator Rob] Hogg said he has appeared before Mansfield and called him “a very active, thoughtful judge. I think Iowans will like his work on the Supreme Court.”[…]

“The selection process proves that Iowa has a great judicial merit selection process, and that’s confirmed by the governor’s appointment of these three individuals,” said Rep. Richard Anderson, R-Clarinda, who is chairman of the House Judiciary Committee.

Anderson was unsure if Wednesday’s selections would ease Iowans’ tensions with the high court.

“In 3 million Iowans there’s just a difference in opinion in everything from policy to process,” Anderson said. “I think we have a good process. Somebody is going to have to really put on some really strong evidence that our system fails to get qualified candidates, because we clearly do.”

Republican blogger Craig Robinson declared that Branstad “did the best he could do with a flawed nominating system,” but I was more interested in this part of his post:

Guy Cook, a member of the nominating committee, told the Associated Press that he was disappointed that no women will serve on the court.   However, at a Federalist Society panel discussion on Monday night, Cook proclaimed that Onwuachi-Willig was the only female applicant out of the twelve who applied who was qualified.  Cook’s assessment is interesting considering that Gayle Vogel, a judge on the Court of Appeals, was deemed qualified by the judicial nominating committee in 1996.  Has she somehow become less quailed after spending 14 years on the bench?  There were several other female applicants with significant judicial experience who also applied, but apparently they were not qualified either.

Rarely do I agree with Robinson, but if Cook really did assert that Onwuachi-Willig was the only qualified female applicant, that’s farcical.

Nathan Tucker, leader of the conservative 501(c)4 group Iowa Judicial Watch, released the following statement:

On Wednesday, Governor Branstad appointed Iowa Court of Appeals Judge Ed Mansfield, trial judge Bruce Zager, and Davenport attorney Thomas Waterman to the Iowa Supreme Court.  Showing little regard for his past promises to Iowans, Branstad has made no effort to assure the public that his appointees will exercise judicial restraint.

Branstad had previously stated that he will only appoint candidates who respected the voters’ rejection of Varnum v. Brien.  Branstad had also recently pledged that:  “I feel an important obligation and responsibility as the chief executive of the state and the person who does make the appointments, to try and choose the very best people – people who I think share the philosophy of judicial restraint that I think most Iowans believe the courts should exercise.”

While he hesitated at making his interviews of the candidates publicly available, Branstad had indicated that he would consider posting non-confidential portions of the interviews online.  While certainly less than what the State Judicial Nominating Commission provided, it would have given Iowans the ability to assess the answers given by each of the nine nominees.

Instead, in making his appointments, Branstad simply stated:  “It is the role of the judiciary in the state of Iowa to say what the law is, as applied to cases before the courts, rather than saying what the law should be.  The separation of powers is central to our Iowa Constitution.”

Branstad, however, made no effort to assure Iowans that his appointees agree with his judicial philosophy.  To the contrary, each of his appointees have made troubling statements in their application material and/or interviews before the Commission, statements that the Governor has failed to indicate are not reflective of his appointees’ judicial philosophy.

For instance, perhaps echoing President Obama’s call for judicial empathy, Judge Mansfield wrote in his application material:  “Appellate judges should have enough real-world experience to understand the effects of their decisions on people’s lives.  There is more to justice than legal elegance…I would be honored to receive the opportunity to apply my judicial and other experience as a Justice of our Supreme Court.”

Joining the chorus, Judge Zager wrote in his application that:  “I consider myself a progressive thinker…I also have a deep appreciation of the real-world implications of an appellate decision…Most importantly, I also realize that both as a trial judge and as an appellate judge, we are dealing with people’s lives.”

In his commission interview, Zager agreed that empathy is a good quality in an appellate judge.  He continued:  “A lot of it is a gut reaction…I have a good feel for people…It’s all about life experiences.”

For his part, Waterman wrote in his application that the law cannot remain static, failing to explain who determines how the law should change.  During his commission interview, Waterman voiced displeasure at the outcome of the retention vote, calling it a shock to the judicial branch.

Given the highly liberal makeup of the Commission, it may well be that none of the nine nominees could have assured the Governor that they would exercise any sort of judicial restraint on the bench.  But if that were the case, Branstad should have used this opportunity to educate the people on the need to change the process.

Instead, with a wink and a nod, the Governor apparently wants us to believe that he has found the judicial philosophy of each of his appointees acceptable. Rather than claiming that the Commission tied his hands and that his picks are the best of the worst, Branstad now, for better or for worse, owns these three new justices.

Branstad has failed to exercise any type of leadership, much less conviction, on this issue, leaving the impression that his prior promises to Iowans were simply an attempt to pander to conservatives.  Conservatives don’t want campaign promises, they want action, and the Governor has failed to deliver.

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