Could the Three Judges Fired in Iowa Impact 2012?

by Gary Marx

In today’s Washington Times, the editors draw attention to the Iowa Supreme Court judges who lost their retention elections and note that “the uncharacteristic ousters appear to have been driven by a distaste for judges who attempt to rewrite the law.” They go on to explain:

In our system of divided government, members of the judicial branch have a very specific duty to interpret the fine points of constitutional law and to apply the meaning of more mundane legislation to specific cases. When judges step outside this role and act as robed political leaders, they don’t just become controversial, they become a threat to our political system based on the separation of powers.

The Times has it exactly right on this point. State judges play an extremely important role, and, unlike federal judges who have virtually no common law role, they are often asked to decide cases involving common law in the areas of civil liability, crime, and contracts. It would be an understatement to say that they must fully grasp the importance and limits of their role in society, and be committed to the law and the Constitution ahead of personal political preferences.

But the editors veer out of their lane in the last half of the editorial, when they state:

It also is a warning to Republicans. Two of the three judges who now will spend more time with their families were appointed to the bench by then-Gov. Terry E. Branstad, a Republican. The same voters who rejected the justices Tuesday decided on the same ballot to return Mr. Branstad to the governor’s mansion. Appointing judges who understand their starkly limited role is among the most critical duties of governors and the president. Republicans only have themselves to blame if the chief executives they select do not understand this fact.

It is not Gov. Branstad who is to blame for Iowa’s awful judges or the limited options he will be given to replace those judges.

As I have noted several times on this site and elsewhere, Iowa uses the Missouri Plan to choose judges, and that system gives conservative governors almost no discretion in the process. Under the terms of Iowa’s Constitution, a fifteen-member commission chooses three nominees for a judicial vacancy and sends them to the governor, and he must choose from that list. If he doesn’t choose, the chair of the commission — a sitting Supreme Court judge — chooses for him. Who are the other fourteen commissioners? Seven are elected by the state bar, which is dominated by the Iowa trial lawyers association, and seven are appointed by the governor for six-year terms vacated on a two-year rotating basis.

In other words: It is mathematically impossible for a governor to ever appoint a majority of the commission that nominates judges. Moreover, according to the Des Moines Register, “The current Judicial Nominating Commission includes 12 Democrats.” That probably explains why Gov. Branstad was just quoted as saying:

We need to be careful about not rushing to try to replace the people that have been rejected, but instead to come up with a thoughtful process that could restore credibility to the court. . . . I think to do otherwise would be really something that would be considered an insult to the voters who have rejected the Supreme Court and, in essence, said we don’t think the judicial nominating process is not fair.

I applaud Gov. Branstad for taking a stand on the issue and urge him to continue fighting the good fight against the special interests who will do everything in their power to maintain control of the state’s highest court. Republican governors should take their role in the judicial appointments process very seriously. That is why I continue to bring attention to the fact that Gov. Mitch Daniels, who is apparently interested in running for president, has been as bad as a Republican governor can possibly be on state judicial selection issues. He has endorsed the same Soros-backed judicial selection method that caused Iowa’s problems in the first place. 

When he and other presidential wannabes campaign in Iowa, I assume they will be asked to explain whether and why they support a system that forces a conservative governor to choose among only liberals offered up by these trial lawyer-dominated commissions. Whose side will they take?

Gary Marx is executive director of the Judicial Crisis Network.

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