Republican power grab for Iowa courts takes shape

Republican lawmakers have unveiled their plan to replace Iowa’s merit-based system for choosing judges with a process dominated by politicians from their own party. Governor Kim Reynolds quickly gave the bill her blessing, just weeks after she said of judicial selection, “we don’t want it to be political.”

Barbara Rodriguez and Stephen Gruber-Miller were first to report details about the proposal in a February 4 story for the Des Moines Register. Later the same day, identical bills from the leaders of the House and Senate Judiciary committees appeared on the legislature’s website (Senate Study Bill 1101 and House Study Bill 110).

Iowans replaced judicial elections with the current selection system through a constitutional amendment in 1962. The governor appoints judges but must choose from a short list of candidates recommended by a nominating commission.

Most elements of that process cannot be changed without amending the state constitution, a process taking years. However, membership of the judicial nominating commissions can be altered by statute. Republicans didn’t use their trifectas in the 1970s or 1990s to do so, nor did Democrats during the 2000s, because most Iowans recognize the process is fair and has produced high-quality judges.

Nevertheless, GOP lawmakers appear to be fast-tracking the new proposal. Reynolds could sign the bill into law as early as next week. (The 2017 collective bargaining overhaul was on the governor’s desk nine days after its publication.)

The most important points of the Republican plan:

  • Attorneys would no longer choose any members of Iowa judicial nominating commissions. Currently half the members of the state and regional commissions are lawyers elected by their peers. Under this proposal, half of the governor’s appointees would be members of the bar.
  • The top Iowa House and Senate lawmakers in each party would select half the members of both the State Judicial Nominating Commission and district-level commissions.
  • The governor’s appointees to the State Judicial Nominating Commission would no longer be subject to Iowa Senate confirmation. (Democrats blocked William Gustoff, one of Governor Terry Branstad’s appointees, from serving on the commission in 2011. Gustoff now serves on the Republican Party of Iowa’s State Central Committee.)
  • Three current attorneys on the State Judicial Nominating Commission would have to step down immediately once the law takes effect, rather than serving through June 30. Late last year, Gustoff sought unsuccessfully to force their removal before the commission considered applicants for vacancies to the Iowa Supreme Court and Iowa Court of Appeals. The commission may soon need to fill another position on the Court of Appeals, assuming Reynolds appoints Judge Christopher McDonald to the Supreme Court this month.
  • As under current law, judicial nominating commissions would be required to have gender and geographical balance but not political balance. So while House Judiciary Committee Chair Steven Holt claimed his proposal would “take the politics out of it” and give everyone “equal voice,” the governor’s political party would control three-quarters of the seats on all commissions at any given time. (Legislative leaders from the other party would pick the other 25 percent of commissioners.)
  • Embracing this plan is a top-tier example of Kim Reynolds hypocrisy–which is saying something. Asked last month about Republican ideas for changing judicial selection, the governor told reporters,

    “Some would say that maybe the process right now is political,” she said. “I think it makes sense to take a look at it. … We want to make sure that the process is fair — we don’t want it to be political; we want to be selecting judges based on their ability to uphold the Constitution and uphold the law.”

    Sure, let’s not be “political,” let’s just give the governor and her allies in the legislature control over the commissions that send her nominees. The result will be the same as if Reynolds could choose anyone she wants for any judgeship. Holt has acknowledged his goal is to send the governor more candidates who reflect her philosophy.

    State Representative Mary Wolfe, the ranking Democrat on the House Judiciary Committee, told the Des Moines Register that the Republican bill would “inject politics” into “a non-partisan process that is the pride of Iowa and the nation.” Senate Minority Leader Janet Petersen sharply criticized the plan in a statement enclosed in full below.

    Final note: The latest election to fill three attorney slots on the State Judicial Nominating Commission concluded on January 31. The Republican power grab will make those elections irrelevant, because the lawyers were due to begin their six-year terms on July 1. But for what it’s worth, the winners were Leon Spies in the second Congressional district, Kristina Stanger in the third district, and Janece Valentine in the fourth district.

    Robert Waterman, the brother of Iowa Supreme Court Justice Thomas Waterman, had sought the IA-02 spot. In late December, he took the unprecedented step of hiring a GOP consulting firm to produce a direct mail piece promoting his candidacy. Sources in eastern Iowa told Bleeding Heartland that Waterman did not send any additional campaign-style mailings to fellow attorneys, just letters or e-mails that are typical for lawyers wishing to serve on a judicial nominating commission.

    UPDATE: An attorney reader highlighted a point I neglected to mention.

    This proposal also means District Associate judges, who do all the juvenile law — an incredibly sensitive and important area — would no longer be selected (post nomination by commission members) by district court judges who know and work with those applicant attorneys, but by people who do *not* know their work or character.

    SECOND UPDATE: The Iowa Judicial Branch is reviewing the bill and had no official statement as of February 4.

    The Iowa Academy of Trial Lawyers, an invitation-only organization representing some of the state’s most experienced litigators, sent out an action alert on February 5 asking members to help “defend our sacred merit based selection process” against a proposal “to radically politicize” how judges are picked.

    February 4 statement from Iowa Senate Minority Leader Janet Petersen:

    “There is no reason to change a judicial selection process that is respected throughout the country and is working well. The plan by legislative Republicans to politicize Iowa’s court system is bad news for Iowans.

    “As the Judicial Branch’s website notes: ‘Merit selection is designed to emphasize the professional qualifications of applicants for judicial appointment and minimize partisan politics.’ That’s apparently not good enough for Republican politicians.

    “They are planning to throw out the current, nonpartisan system for selecting judges for no good reason. In its place, they want a new system that will favor their political appointees and donors. Iowa shouldn’t sell off its courts to the highest bidders!

    “Some Republican politicians still haven’t gotten over the unanimous decision of the Iowa Supreme Court in 2009 to legalize same-sex marriage. They were on the wrong side of history in 2009 and they are on the wrong side of history today.”

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    • If anyone now believes...

      …that Iowa Republicans won’t try to change Iowa’s current nationally-respected redistricting system to a gerrymandering system if they see a good opportunity, in spite of any promises any of them might make to the contrary, I know of a kindly foreign prince you can talk to online who is dying to give you several million dollars.