Governor Kim Reynolds is one step closer to controlling a majority of votes on all of Iowa's judicial nominating commissions, following Iowa Senate passage of Senate File 171 on February 8.
Voting 34 to 15 along party lines, the chamber approved the bill, which would give the governor an extra appointee on commissions that recommend candidates for lower court appointments, and remove district chief judges from those bodies.
JUDICIAL SELECTION CHANGES BEGAN FOUR YEARS AGO
Since 1962, Iowa has used a merit-based system for appointing judges. Judicial nominating commissions review applications and interview candidates before sending the governor a short list of two nominees for District Court positions or three nominees for Iowa Supreme Court and Iowa Court of Appeals vacancies. The governor has 30 days to choose from among the finalists. The appointee is not subject to Iowa Senate confirmation.
For nearly 60 years, the State Judicial Nominating Commission and its counterparts in Iowa's judicial districts had equal numbers of attorneys (elected regionally by members of the Iowa bar) and members appointed by the governor. The most senior Iowa Supreme Court justice who was not the chief justice chaired the State Judicial Nominating Commission, and the most senior judges in each of Iowa's judicial districts chaired the commissions at the district level.
Reynolds pushed for more control over the judicial nominating commissions in 2019, and most GOP lawmakers were happy to oblige, in what was widely perceived as a reaction to the Iowa Supreme Court's abortion rights ruling of 2018. The initial proposal would have removed all elected attorneys from the commissions while giving Republican politicians control over most of the appointments. It cleared an Iowa House committee but never came to the floor, due to resistance among some Republican members.
On the final day of the 2019 legislative session, House and Senate majorities approved a compromise. That language kept district judicial nominating commissions unchanged (half gubernatorial appointees, half elected attorneys) while giving the governor a ninth appointee to the State Judicial Nominating Commission, replacing the Iowa Supreme Court justice. Eight elected attorneys would continue to serve.
Since then, some GOP lawmakers have tried several times to replicate the model at the district level. The Iowa Senate approved one such bill along party lines in 2022, but the legislation died in the House Judiciary Committee.
Republicans added provisions to last year's judicial systems appropriations bill that would have kept chief judges on the district judicial nominating commissions, but not necessarily in the leadership role. Instead, commission members would have elected a chair. Reynolds item vetoed that portion of the judicial budget, saying the provisions would not address "serious concerns about the undue influence of judges on district court commissions." She cited one recent example, which had prompted her to decline to fill a District Court vacancy.
"I HAVEN'T HEARD COMPLAINTS"
Republicans increased their majorities in both chambers following the November election, which cleared a path for several ideas that previously lacked enough support in the House GOP caucus. Lawmakers in both chambers approved one of those bills, limiting medical malpractice awards, on February 8.
Shortly after the Senate finished the emotional debate over medical malpractice, leaders brought up Senate File 171.
Its floor manager, Republican State Senator Julian Garrett, has been a leading proponent of judicial selection changes. He explained that district judicial nominating commissions currently have five members appointed by the governor, five elected attorneys, and the chief judge. His bill would keep the five elected attorneys, remove the judge, and give the governor a sixth appointee.
Garrett said he hadn't heard complaints about the State Judicial Nominating Commission changes, and asserted that body has been functioning well since the governor gained an extra appointee in 2019.
Within the legal community, some would challenge Garrett's characterization. Perceptions that the State Judicial Nominating Commission is more subject to political influence may be one reason that only five people (an extraordinarily low number) applied for the last Iowa Supreme Court vacancy.
"THIS IS A POWER GRAB BY THE GOVERNOR"
Democratic State Senator Nate Boulton offered an amendment that would have required the governor's appointees to district judicial nominating commissions to be two registered Republicans, two Democrats, and two no-party voters. He said that if the governor was going to gain an extra voice on the commissions, lawmakers should "do what we can to insulate these commissions from partisan politics."
Senators rejected the proposal mostly along party lines, with Republican Mark Lofgren joining Democrats to support Boulton's idea.
Democratic State Senator Herman Quirmbach argued that Garrett's bill "undermines the system of checks and balances that is the bulwark of our constitutional system." He rejected the floor manager's assertion that the State Judicial Nominating Commission changes had worked out fine. "Two wrongs don't make a right," Quirmbach said. "We screwed it up at the state level, and now it's being proposed to screw it up at the local level," which would "compromise the quality of justice" across Iowa.
"Let's be honest. We all know what's going on here," the Democrat added. "This is a power grab by the governor and her allies to try to impose her will on the judicial system in this state."
A few minutes later, Republican State Senator Dan Dawson reprised old arguments about judicial selection. He argued that Iowa's system had previously been "hijacked by Demcorats" and made attorneys "supercitizens" with more power than others. (The 1962 constitutional amendment was designed that way because attorneys were thought to have a better understanding of qualities that make a good judge.)
Dawson thanked Garrett for bringing his idea forward again and said changes to the State Judicial Nominating Commission gave "the people of Iowa a little bit more say in their judicial system," through their elected governor.
In his closing remarks, Garrett said Iowa courts are still respected despite "doom and gloom" predictions of how the 2019 changes would mess up the system.
He asked colleagues to consider the attorneys elected to district commissions who practice before the judge serving as chair. "Is that going to intimidate some of the attorneys? Are they going to be a little hesitant to express their opinions if it's different than the opinion the judge has?" Garrett said lawmakers had heard "specific examples" of that happening.
Garrett noted that the president exerts much more power over federal judicial appointments than Iowa's governor has, being constrained to finalists nominated by an independent commission. He didn't acknowledge that federal judges are subject to U.S. Senate confirmation, whereas the Iowa governor's judicial appointments are final.
For Garrett, arguments against changing Iowa's district commissions "don't hold water," because "We've got a great Supreme Court. I haven't heard objections."
Within the legal community, many consider the current Iowa Supreme Court to be more swayed by political considerations. The Iowa State Bar Association's latest Judicial Performance Review, based on a survey of practicing attorneys, found relatively low retention ratings for the two Reynolds appointees who were on the ballot in 2022. Their lowest marks on that survey were for "Decides cases on basis of applicable law and fact, not affected by outside influence."
In any event, Garrett wrapped up by predicting "our judicial system's gonna be just fine."
Republican senators approved the bill, which goes to the Iowa House.
Top image: State Senator Julian Garrett delivers closing remarks on February 8 (screenshot from Iowa Senate video).