Bench Memos

Iowa’s Fatally Flawed Judicial Nominating System

The Des Moines Register on Monday criticized Governor Branstad for his appointment of eight Republicans to Iowa’s judicial nominating commission. Iowa is a Missouri Plan state, and the commission, chaired by an Iowa Supreme Court Justice, is made up of eight governor-appointed nominees, and eight nominees elected by lawyers from their respective congressional districts. The Register argues that Iowa’s Senate should consider refusing Governor Branstad’s nominees, for being overly partisan. The Register’s complaints—based on actions that any competent governor would take — are nonsensical; Governor Branstad is, at best, returning bipartisanship to a fatally flawed nominating commission. 

The Register conveniently ignores that Governor Branstad’s appointments do not differ from those of previous governors. For example, in 2010, after twelve years of Democrat appointees, the commission, then 14 members, consisted of one unaffiliated member, eleven Democrats and two Republicans. Even though by any definition, this commission would be unbalanced, I can’t find any evidence that any appointments over the prior twelve years of Democrat control bothered the Register’s editorial board.

The Register also neglects that all Governor Branstad can hope to do is bring a semblance of balance to the commission, because his appointments are matched by the bar’s lawyer-elected appointees. I looked into the background of the remaining eight commissioners, and found that six of them were Democrats. Of the remaining two, one is a Republican, and one is unaffiliated with any political party.   

There are very damaging consequences for handing over a significant portion of the judicial nominating process to left-leaning special interests, and Iowa is exhibit A. Iowa’s Supreme Court is easily one of the most flagrantly activist in the country. In 2009, the court famously invented the right to gay marriage, as allegedly required under the Iowa constitution’s equal-protection clause. The court found that equal protection’s definition changed with each generation, and incomprehensibly cited the judiciary’s ability “to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”

Thankfully, in 2010, a full 54 percent of Iowa voters voted to deny retention for three of the justices, achieving something that virtually never happens in Missouri Plan states. Those justices were eventually replaced by Governor Branstad, who was forced to choose nominees from the lists forwarded to him by the state’s nominating commission.

The good news is, Governor Branstad’s three most recent appointees seem to have improved the direction of the court. But, so long as Iowa continues to be a member of the Missouri Plan club, allowing the state bar to stack the bench with like-minded (usually left-leaning) judges, don’t expect things to improve. Until substantial reforms are made, the Judicial Crisis Network looks forward to working with friends and allies in the state to begin the process of reforming Iowa’s broken judicial-selection system.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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