Republican judicial power grab returns, in new form (updated)

UPDATE: The governor signed this bill on May 8.

In the closing hours of the legislature’s 2019 session, Iowa House Republicans introduced a new plan to change the system used to choose our state’s judges.

While not as far-reaching as the initial proposal, the legislation would still give Governor Kim Reynolds substantially more control over judicial selection.

Iowans approved a constitutional amendment in 1962 to replace judicial elections with a less political, merit-based approach. Under the current system, the governor appoints eight members of the State Judicial Nominating Commission (who are subject to Iowa Senate confirmation) and five members of similar panels at the district level (who need not be confirmed). Attorneys elect the other eight members of the state-level commission and five members of each district panel. The governor must appoint judges from a short list of candidates provided by the commissions. The State Judicial Nominating Commission picks three finalists for any vacancy on the Iowa Supreme Court or Court of Appeals. The district panels choose two finalists for each open position on a district court.

Most aspects of this process can’t be changed without amending the constitution, which takes years. However, a loophole written into the 1962 amendment allows the legislature to alter how nominating commissions are formed through statute.

Under bills introduced in the Iowa House and Senate in February, attorneys would no longer elect any members of judicial nominating commissions. The governor would appoint half the commissioners, and half of her appointees would be attorneys. State legislative leaders from both parties would appoint the rest of the members. None of the governor’s appointees would be subject to Senate confirmation.

The Iowa Senate approved that plan in March along party lines, by 32 votes to 17. The companion bill made it through the House Judiciary Committee but never came to the floor.

The bill’s lead sponsor, State Representative Steve Holt, offered a compromise that would have preserved attorney elections for half the members of the district judicial nominating commissions. Still, House leaders could not find the 51 votes they needed to get this bill through. It has been sitting on the “unfinished business” calendar for weeks.

Meanwhile, State Representative Andy McKean, a lawyer who opposed the judicial selection changes, left the Republican Party this week, shrinking the majority in the lower chamber from 54-46 to 53-47.

On April 26, Holt filed an amendment to Senate File 638, the “standings” budget bill. The standings bill is one of the last to pass every year and tends to become a dumping ground for pet projects that didn’t make it into other legislation.

Key points from Holt’s amendment, which is enclosed in full below:

  • The governor would appoint nine members to the State Judicial Nominating Commission (not eight as under current law). They would still be subject to Senate confirmation.
  • Attorneys would continue to elect eight members of the State Judicial Nominating Commission, a man and a woman from each Iowa Congressional district. Legislative leaders would not choose any commissioners.
  • To ensure that the governor’s representatives outnumbered attorneys at all times, any appointed member of the State Judicial Nominating Commission would be considered to have resigned if the person missed a meeting. The governor would be able to select a replacement.
  • District judicial nominating commissions would continue to be balanced, with half the members appointed by the governor and half elected by fellow attorneys.
  • State Judicial Nominating commissioners would elect a chair from among their own members, removing the Iowa Supreme Court justice with the second-most seniority from that role. Republican lawmakers dislike Justice David Wiggins, who has chaired the State Judicial Nominating Commission since 2011. The District Court judge with the most seniority would continue to chair the district nominating commissions.
  • Members of commissions could not “hold over” until their successors had been chosen. This provision stems from a dispute that came up late last year, when Republican Party activist William Gustoff unsuccessfully sought to remove three elected attorneys before the State Judicial Nominating Commission considered applicants for vacancies to the Iowa Supreme Court and Iowa Court of Appeals.
  • The new legislation would require the Iowa Supreme Court to choose a chief justice in each odd-numbered year for a two-year term. So Chief Justice Mark Cady’s term would end in 2021, whereas under current law he would continue in that role through 2024, when his term on the Supreme Court ends.
  • As under current law, judicial nominating commissions would be required to have gender and geographical balance but not political balance. So Reynolds could continue to appoint Republicans to nearly all the positions. (Most of the elected attorneys on district nominating commissions are Republicans as well.)
  • Legislative leaders rarely bring bills to the floor unless they are confident they have the votes lined up. So in all likelihood, at least 51 House Republicans will support this watered-down power grab. Multiple sources indicate the House GOP holdouts have faced intense political pressure this week from Speaker Linda Upmeyer and representatives of the governor.

    At this writing (early evening on April 26), House members have not debated the standings bill or any of its amendments. Legislators are expected to work late, possibly all night, in order to wrap up their session on April 27. Upmeyer is widely rumored to be resigning from the legislature within days in order to start a new job next week. UPDATE: In her closing remarks before adjournment, the speaker told colleagues, “I look forward to coming back with you next year refreshed and ready to continue moving Iowa forward.” SECOND UPDATE: Appearing on Simon Conway’s WHO-Radio show on April 30, Upmeyer emphatically said she is not stepping down from the legislature.

    I’ll update this post as needed.

    UPDATE: The House took up Senate File 638, the standings bill, on April 27. Democratic State Representative Chris Hall offered an amendment containing all of the language Senate and House Republican leaders had agreed to, without any changes to judicial selection. He described his amendment as a way for lawmakers to use “parliamentary procedure” to stand up “for an independent legislature and an independent judiciary.” House members rejected it along party lines, 53 votes to 45.

    A few minutes later, Holt offered his amendment (starting around 10:06:50 of this video). After listing its provisions, Holt asserted,

    These changes are well within our constitutional authority, as defined in Article V, Section 16 of our constitution. […]

    Giving the governor one additional selection will make our judicial nomination process more accountable to the people. Giving the governor an additional appointment, just one more than the attorneys, provides an opportunity for a slightly stronger voice in the selection process. And why would that not be appropriate? The governor, be they Republican or Democrat, are tasked with the important responsibility of making selections for our court system, an awesome and sacred responsibility. The governor is elected by hundreds of thousands of citizens in Iowa. […]

    Providing one additional appointment to the governor provides a bit of extra voice to the people, through their elected governor. This extra appointment does not politicize the system in any way. It cuts both ways politically, giving a extra voice to a Republican governor, just as it would to a Democrat governor. And I think this is absolutely appropriate for the governor, regardless of party, that must make these very important decisions.

    If Holt sincerely believes in what he said, he is probably the only one. Everyone knows this change would never be happening if Fred Hubbell were governor. The policy is about one goal only: giving Reynolds the ability to pack the courts with conservative ideologues. If a Democrat is ever elected governor, statehouse Republicans will scream about “unelected liberal judges.”

    Holt defended shortening the term of the chief justice would make him “more responsive to his members,” since the composition of the Supreme Court could change quite a bit over the eight years one person can hold that position under the current system.

    He touted several provisions aimed at increasing the representation of rural attorneys on the nominating commissions (for instance, reducing the number of signatures they must gather on petitions when running for a spot on the judicial selection panel).

    Democratic State Representative Mary Wolfe challenged the germaneness of Holt’s amendment. Speaker Upmeyer ruled the point well taken, after which House members voted along party lines to suspend the rules and allow consideration of the amendment anyway. The motion passed by 52 votes to 46, with every Republican supporting it except for Representative Megan Jones, who joined Democrats voting no. Jones is an attorney and a former assistant majority leader.

    Wolfe urged colleagues to oppose the “power grab,” saying the existing process works well.

    It’s very much a team effort. The governor’s eight Republican political appointees ensure that the three attorneys nominated by the commission share, at least in some part, the governor’s general philosophy and values, while the eight elected attorney members ensure that all three of the chosen nominees have the necessary expertise, experience, and judicial temperament to do the job.

    And again, the governor–not the commission members, and certainly not the eight elected attorney members–has the final say.

    It’s a good system. It’s a respected system. […]

    I challenge anyone in this room to find fault with either of the two Supreme Court justices appointed by Governor Reynolds since she took office [Susan Christensen and Christopher McDonald] or to suggest that either of those justices don’t share her judicial philosophy.

    Although Holt had downplayed the significance of giving the governor one extra political appointee, Wolfe argued “it is a big deal.” Political appointees would be able to control the process. Wolfe didn’t say it, but I anticipate that Reynolds (directly or indirectly through her staff) will tell her nine appointees which judges to put on the short lists, and they will do exactly what they are told. Especially since a Supreme Court justice will no longer be present to provide a judge’s perspective on which candidates would best complement the high court.

    Democratic State Representative Karin Derry spoke next, arguing that the system does not need fixing. While speaking with thousands of voters during last year’s campaign, “not one voter told me that they were unhappy with how we select Iowa’s appellate judges.” She heard complaints about Medicaid, problems with mental health services, and school funding, but nothing about the judicial nominating system. “Nobody asked for this,” yet legislators are here on a Saturday, changing the system with no public input. Derry once clerked for judges on the Iowa Court of Appeals and Iowa Supreme Court, and found them committed to applying the law without regard for politics.

    Democratic State Representative Rick Olson echoed points raised by colleagues, saying there was no need to change the system. He then focused on the process: legislative staff saw the amendment 4:30 pm on April 26. Holt sought no bipartisan input as “the tide changed this week,” and efforts to craft a new plan gained momentum. Olson argued that any change to the system should be done transparently, through the constitutional amendment process, which requires public input.

    State Representative Andy McKean, a lifelong Republican before joining the Democratic caucus a few days ago, began his speech by saying he was “very, very impressed” to learn two days earlier that the standings bill was “not encumbered by partisan political issues.” But “things change very quickly around here.”

    And I think it’s a sad day for the state of Iowa. To call what we have before us any sort of a compromise is laughable. It is what it obviously is: the latest of many desperate attempts to corral 51 votes for a piece of very questionable legislation.

    It was a bad idea when it was first proposed. It was a bad idea in the many configurations of it that have been thrown together to convince concerned Republicans to come on board, and it is no better this morning.

    It is bad because it politicizes our courts. It may be a little less stark than earlier versions, but that doesn’t make it right. The bottom line is the same. It injects politics where it has no place, in our courts. And as the old saying goes, be careful what you pray for. It may sound like a good deal for the majority party this morning. But it could very well be a good deal for the Democratic Party a few years from now.

    Is that the kind of court we want? One that changes with the political winds? I certainly hope not.

    It’s bad because the people of Iowa have not asked for this. In fact, all indications are that they have confidence in our present judicial system.

    Where this bill came from is anybody’s guess. I certainly didn’t hear about it on the campaign trail. I didn’t hear about it in the governor’s inspiring Condition of the State speech on January 15, and I don’t hear Iowans clamoring for it today anywhere, except perhaps in this building.

    It is also bad because of the way it was formulated. Our present judicial system is the result of a blue-ribbon task force that put together a framework for a court system based on merit, integrity, and competence. [Bleeding Heartland published those 1959 recommendations here.] It was then presented to the people of Iowa and strongly endorsed by them.

    Contrast that to the tawdry process we’re seeing today. Instead of a blue-ribbon task force bringing its recommendations before the legislature and the people of Iowa, we have a proposal developed in a back room somewhere.

    Since the original proposal didn’t have the votes to get it out of committee, it was revised to round up the necessary votes. Since the bill that came out of committee didn’t have the votes to pass the House, at least three or four versions have been put together in an attempt to get the votes needed.

    Is this a responsible way to dramatically alter Iowa’s method of judicial selection? Little or no input from the courts or the legal community? Little or no opportunity for the public to react? And yet another version to round up the 51st vote from exhausted legislators on the final day of the session, with the debate limited by time.

    Let’s acknowledge the bill for what it is: a blatantly partisan effort to remake the court in the majority party’s image.

    It’s bad because we have one of the finest judicial systems in the country. It’s a slap in the face of our courts, that are ranked among the best in the country. It’s a slap in the face of the nominating committees around the state, who spend countless hours selecting judges based on their work ethic, integrity, and competence, not on partisan considerations. It’s a slap in the face of our judges who work tirelessly to mete out justice. And it is a slap in the face of our chief justice, an honorable and decent man who is being treated very, very shabbily in this legislation.

    To label this “modernization” is a farce. To the freshman class who are witnessing this spectacle today, and to any of the folks we represent who are here or are observing this, you are seeing firsthand the dark side of democracy. The dark side of democracy where legislation is put together and pushed through for partisan purposes, and not on its merit.

    It’s a sad day for our courts and our traditional constitutional separation of powers. It’s a sad day for our governor, as I believe it paints her in a very partisan manner. It’s a sad day for the legislature, and particularly for any legislators who are contemplating voting for this with a heavy heart. And it’s a sad day for the people of Iowa.

    For me, hope springs eternal. There was a time in this legislature when the die was not cast before the first words of debate were spoken. There were times when bills and amendments actually lost on the floor, because people attentively listened to debate, and hearts were changed. I would like to think that those days are not gone for good. The decision you are about to make is a very significant one, and one that I hope you will give prayerful consideration to.

    Democratic Minority Leader Todd Prichard spoke next, saying it would be “a huge mistake” to politicize the courts and give the governor more influence over the judicial branch. Iowa’s courts work well compared to other states, where attorneys frequently make campaign contributions to judges assigned to their cases.

    We talked at length about the rule of law, and trust me, I can think of very few things that we need to protect more as elected officials in this state than to protect the rule of law in this state. This amendment is nowhere in the interest of protecting the rule of law. This amendment inserts the rule of political winds into our judicial system, ever so slightly, but ever so significantly.

    This is a horrible, horrible idea that is not needed and will not improve a good system.

    In his closing remarks, Holt rebutted some points raised by Democrats. He denied they were changing the merit-based selection system. The “escape clause” was put into the constitution, he said, because some people were concerned to giving power to “a small group of attorneys.” (My research on the origins of the constitutional loophole did not uncover such evidence.) He said he had listened to other people’s concerns, which is why attorney elections and Senate confirmation of the governor’s appointees are back in the bill (they were not in the original draft).

    As for those who have claimed his bill is “a solution in search of a problem,” Holt said past and current members of judicial nominating commissions had shared “lots of horror stories” with him.

    Holt denied Republicans were trying to politicize the system.

    Representative Wolfe, this is not a power grab. This is the majority party in this chamber exercising our authority when we recognize that changes are needed, and we work over a period of six months to arrive at a place where we try to address the concerns that have been expressed, while at the same time addressing the problem.

    Regarding the separation of powers, Holt argued the bill would introduce “some checks and balances.” He repeated that the constitution grants the legislature the power to remake the commissions through a simple law, without amending the constitution.

    Moments later, Holt showed his hand. Ultimately, he wants the governor to be able to appoint whoever she wants, just like the president of the United States.

    Again, I would say that the governor is tasked with a very, very important responsibility in picking justices for the Iowa Supreme Court. And I would argue, be they Democrat or Republican, whether I like it or not when it’s a Democrat, I think the Democrat governor ought to be able to select a judge that reflects their judicial temperament. Period. I don’t have to like that. I didn’t like some of the picks of President Obama, but he had the right to do it. Because he’s the president. And I would argue the governor should have that same opportunity, to have a little bit more voice in that process.

    Key difference: the president’s judicial nominees must be confirmed by the U.S. Senate. The Iowa governor’s judicial appointments are not subject to confirmation. Her action is final. Holt and his fellow Republicans have given Reynolds control over the short list of nominees coming out of the commission, but the Iowa Senate will not have any power to consent to her choice.

    Holt was visibly angry reacting to McKean’s remarks about “backrooms,” prompting several Democrats to call a point of order. He denied doing things in dark rooms. “We listened for six months” and removed many provisions from the original plan. He also denied that Chief Justice Cady was being “treated shabbily.” Nine other states have terms of two years or less for the chief justice.

    A strange thing happened during the roll call vote on Holt’s amendment, beginning around 11:08:00 on this video. Most Republicans quickly voted yes, reaching 50 and then 51 votes, but most Democrats did not press the button. Eventually a rule was invoked to require a verbal roll call, at which point the 52nd yes vote appeared on the machine. My understanding is that GOP State Representative Gary Mohr was the last to vote yes–perhaps he had been hoping to avoid taking a stand.

    Jones joined Democrats to oppose the amendment, which passed 52 to 46 vote.

    The standings bill then passed along party lines, 53 votes to 47. A short while later, the Iowa Senate approved the bill on a 32-18 party-line vote.

    Final note: Holt repeatedly alluded to Republicans working on the plan for “over six months”–that is, since before the November election. Although Reynolds has denied that she concealed her agenda for the courts during the 2018 campaign, my sources indicate that her representatives were deeply involved in these discussions from the beginning. The governor’s staff do not allow me to participate in her news conferences and almost never respond to my inquiries. Some journalist with access should press Reynolds for answers about the role her legal counsel Sam Langholz and others played in developing the initial judicial selection proposal.

    While they are at it, reporters should ask the governor whether she or members of her staff threatened Republican holdouts this past week, saying they would line up 2020 GOP primary challengers against legislators who did not fall in line.

    SECOND UPDATE: Jones told The Iowa Standard,

    “I agreed with about 95 percent of that bill. My problem with that bill came down to that they made the chief justice run for that spot every two years.” […]

    “There’s already some discussions going on about how calls are being made and things are already becoming politicized and the bill hasn’t even been signed yet,” Jones said. “People are making phone calls and trying to advocate for that position and the bill hasn’t even been signed yet. That two-year turnaround is very quick.”

    Jones said the judiciary is an entity that needs to be “very stable and very consistent.” […]

    The idea of the chief justice running for the post every two years makes Jones “nervous.”

    Appendix: State Representative Steve Holt’s new judicial selection proposal, filed as an amendment to the standings bill on April 26

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