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.

Most Popular

U.S.

Men Literally Died for That Flag, You Idiots

The American flag’s place in our culture is beginning to look less unassailable. The symbol itself is under attack, as we’ve seen with Nike dumping a shoe design featuring an early American flag, Megan Rapinoe defending her national-anthem protests (she says she will never sing the song again), and ... Read More
Books

The Plot against Kavanaugh

Justice on Trial, by Mollie Hemingway and Carrie Severino (Regnery,  256 pp., $28.99) The nomination and confirmation of Brett Kavanaugh to the Supreme Court was the political event of 2018, though not for the reasons anyone expected. All High Court confirmations these days are fraught with emotion and tumult ... Read More
Politics & Policy

He Just Can’t Help Himself

By Saturday, the long-simmering fight between Nancy Pelosi and her allies on one side and the “squad” associated with Alexandria Ocasio-Cortez on the other had risen to an angrier and more destructive level at the Netroots Nation conference. Representative Ayanna Pressley, an African-American Massachusetts ... Read More
White House

On Gratitude and Immigration

Like both Rich and David, I consider it flatly inappropriate for the president of the United States to be telling Americans -- rhetorically or otherwise -- to “go back where you came from.” In consequence, you will find no defense of the president from me, either. What Trump tweeted over the weekend was ... Read More
Education

Gender Dissenter Gets Fired

Allan M. Josephson is a distinguished psychiatrist who, since 2003, has transformed the division of child and adolescent psychiatry and psychology at the University of Louisville from a struggling department to a nationally acclaimed program. In the fall of 2017 he appeared on a panel at the Heritage Foundation ... Read More
U.S.

The ‘Squad’ Gives a Gift to Donald Trump

On Sunday, Donald Trump gave the Democrats a gift -- comments that indicate he thinks native-born congresswomen he detests should “go back” to the countries of their ancestors. On Monday, the four congresswomen handed Trump a gift in return, managing to respond to the president’s insults in some of the most ... Read More