Senate Republicans stuck together Tuesday afternoon as Senate File 327 passed on a party line vote. The bill will alter Iowa’s judicial nominating commissions. Republicans sat through a lengthy debate during which Democrats voiced their displeasure with the bill and offered some amendments.
Democrat Sen. Rob Hogg expressed concern over the process becoming pay-for-play where appointments are given to the highest bidder. Hogg wanted an amendment that would allow for the Senate to confirm the governor’s appointees to the commission.
Hogg also voiced concern with the potential members of the commission holding extreme ideology.
“Not being appointed because of their qualifications, but because a leader or governor is trying to satisfy a narrow interest group,” Hogg said. “That would be bad for the commission process.”
Hogg stressed the need to focus on qualifications when it comes to members of the commission.
“We don’t want a process like that to produce judges who don’t meet the minimum merit-based qualifications that we have under the current system,” he said. “Do we want to add another check? Do we want to make sure that we have transparency and openness and public input?”
Republican Sen. Julian Garrett called Hogg’s amendment “interesting.”
“You’re concerned about interest groups and people being selected with no oversight and no conformation and so on,” Garrett said. “I’m just thinking about what the circumstances were for the half of the commission that was elected by the attorneys. Is that an interest group? Not only attorneys, a very small group of attorneys. Their selections never did have to be confirmed by the Senate. If Sen. Hogg was serious about these concerns you’d think he’d have been serious over the years about demanding the people elected by the Bar Association be confirmed by the Senate.
“They didn’t have to be. That seemed to be fine. So we’re just doing the same thing that has been done all along in the case of the people selected by the Bar Association.”
Garrett noted seven of the eight Bar members are from the largest cities in the state. And he speculated they could be electing their buddies.
“I think Sen. Hogg is making a point for everybody else that he wasn’t willing to have over the years for his own group,” Garrett said. “I don’t think the concerns are anywhere near as great as he thinks they are.”
Democrat Sen. Nate Boulton said the amendment addressed a key concern as the process needs as many safeguards as possible to insulate Iowa courts from partisan politics.
“Having a Senate confirmation process is an important safeguard because it allows us to understand what some of the motivations are behind the individual’s appointment,” Boulton said.
Republican Sen. Dan Dawson examined figures of political donations from current members of the commission. He said one party has received $67,000 in campaign donations while another has received $19,000.
“The current confirmation process isn’t blocking (pay-for-play) right now,” Dawson said. “I don’t think anyone thinks the current system is a pay-to-play.”
Hogg said nobody elected to the commission is elected by the Bar Association. They are elected by the lawyers in the Bar of the state of Iowa resident elections administered by the courts, he said.
“You can maybe that’s not sort of what you really like, but you need to remember that was the system created by the voters of Iowa in 1962,” Hogg said.
Hogg’s amendment failed.
Dawson submitted an amendment so that the changes would impact just the state judicial nominating commission.
Hogg, though, offered an amendment to Dawson’s amendment and said there are constitutional problems with the bill.
“The whole premise that you’re going to make this significant change to something constitutionally created in 1962, I think in the structure of the constitution that’s a constitutional question,” he said.
Currently commissioners are selected to serve a six-year term. This bill would put an end to all of those terms prematurely, which is another constitutional concern according to Hogg.
The legislature, Hogg said, would be saying it can ignore the constitution and if the legislature is wrong the courts cannot do anything about it. No judges will get appointed if an injunction is granted on any challenge to the legislation. Everything would freeze until it is worked out.
Hogg also said he didn’t recall anyone campaigning on the issue.
“I followed the campaigns last fall, I don’t remember one of you campaigning on that,” he said. “I certainly don’t remember Gov. Reynolds campaigning on it. This is just a naked, Republican, short-term power grab. That’s what this his. You are so full of yourselves sitting here at 32 members and a majority in the House and Gov. Reynolds. The trifecta that you say we don’t have to follow the constitution. Arrogant, arrogant, arrogant.”
Garrett said a severability clause is not rare in legislation.
“There’s nothing particularly unusual about this bill,” Garrett said. “I (campaigned on this issue). I talked about it quite a bit about judges legislating from the bench, changing the constitution based on their own opinions and what htey think it ought to be.”
Garrett said judicial reform has been a conversation he’s had for years at both the state and national level.
Democrat Sen. Todd Taylor said he didn’t believe the process is broken.
Hogg’s second amendment also failed.
Dawson’s amendment passed. And, he said, reflects the fact that Republicans put a lot of work into the legislation.
“We definitely took our time,” he said. “This amendment reflects the fact we received a lot of in put.”
District nominating commissions and state nominating commissions were distinguished. Each had their advantages and each had their disadvantages. Dawson’s amendment will keep the district commissions local, other than changing the fact that the senior judge on the commission will now be appointing a person instead of a judge.
The amendment passed.
Democrats continued to speak in opposition to the bill. Sen. Joe Bolkcom launched more attacks against the bill’s proponents.
“I ask today what problem Sen. Garrett and members of the Republican caucus is this bill trying to solve,” he asked. “We’re here because of the decision around marriage equality. You folks still don’t like the fact that gay people who love each other and want to spend their lives together can get married. You still can’t believe that happened. You don’t like it.”
More recently, Bolkcom said, Republicans are angry over the court’s rulings on reproductive rights.
“Abortion, by the way, is a legal procedure,” he said. “The hot-button social issues, that’s why we’re here right now. That’s why we’re going to upend family court, probate court, business court, criminal court. Sen. Garrett wants to talk about judicial activism, he’s your leader on this, you know that. He hasn’t told us which case it is, but we know which case it is because we’ve been told what case it’s been by The Family Leader.”
The Family Leader, Bolkcom said, is driving the buss.
“The extremists are driving the bus her,” he said. “You’re ready to throw out a perfectly working legal system for justice in this state for these extreme viewpoints. It’s arrogant. All because the Iowa Supreme Court has made some decisions you don’t like. We’re going back to 1962 here to overturn what the people of Iowa said they wanted. We’ve got new constitutional amendments proposed on stuff you don’t like and you’re going backward tearing up constitutional amendments that people passed.”
Bolkcom finished by warning times will change and Democrats will one day be able to hold the power should this bill become law.
“Be careful what you ask for,” he said.
Fellow Democrat Sen. Herm Quirmbach called it a sore-loser bill. He detailed historical precedent for the bill, highlighting President Franklin D. Roosevelt’s effort to pack the federal Supreme Court after not getting his way with legislation. But it didn’t work.
“It didn’t happen even though one party, the Democratic Party in that case, controlled not just the executive branch but had overwhelming majorities in both the U.S. House and the U.S. Senate. It didn’t happen because Democrats in the United States Senate stood up against their own president. They stood up for the constitutional system of checks and balances. They stood up for the independence of the judiciary. They stood up for the rule of the law. They had the courage and the integrity to put their loyalty to the constitution over their loyalty to party.”
Quirmbach called the Varnum decision, which forced Iowa into same-sex marriage, a “radical notion” that the word equal meant equal. He talked about a night in 2004 where Republicans were unable to pass a marriage amendment even with a 29-21 majority. Four Republicans didn’t support the measure, which was enough to stop it.
Former Republican senators Maggie Tinsman, Don Redfern, Mary Lundby and Doug Shull voted against the amendment.
“We had four Republicans who had the integrity and the courage to stand up for equal protection under the law,” Quirmbach said.
Like Bolkcom, Quirmbach reminded Republicans one day they might not be in the majority and they may not have the a Republican governor in Iowa.
Boulton said Iowa’s system is the model for the nation. And what the bill does threatens a very core, fundamental, basic concept in Iowa — which is the state’s motto.
“Our rights matter. Our liberties matter,” he said. “Our judicial system is there to protect those rights and those liberties. What this legislation is doing today is disrupting that proud tradition. We should be hanging our heads down, embarrassed of this discussion.”
Boulton said it’s a positive to have judges who aren’t looking over their shoulders to determine their rulings to decide what will look good on a 30-second political ad.
“We have two branches of government to focus on that,” he said. “We need one that has a safeguard.”
Democrat Sen. Bill Dotzler followed Bolkcom’s line of attack. He said in order to find out where a bill comes from, just look to see who is in the rotunda talking about it and fighting for it.
“Quite frankly, there aren’t very many people who are for this bill at all,” he said. “The Governor’s office, The Iowa Right to Life committee, the third group, Iowans (Americans) For Prosperity and The Family Leader — two issues.”
Businesses in Iowa, he said, want to know the courts will make fair decisions, not political ones.
“I see you all got your heads down, but you’re going to vote for this,” he said. “I don’t know what happened to the Republican Party of 1996 when I got elected. We (could) work together on these bills and we didn’t have this extremism.”
Dawson stood to speak in support of the bill.
“I want to correct the record here, right now,” he said. “This bill is not because of one court case or two court cases. The reason why I support the bill is for reasons entirely different from that.”
Dawson described the current system. There’s 3.1 million people in Iowa. Their voice, he said, is represented through eight members who the governor selects. They have to file an application, maybe get nominated by the governor, maybe get confirmed by the Senate.
Meanwhile, Dawson said, the Iowa Bar of approximately 10,000 lawyers in Iowa, represents 0.03 percent of all Iowans. Yet they have half of the weighting on the commissions. Those lawyers, Dawson said, are not accountable to the People.
And, a 17th person on the commission, is the senior judge who is also a lawyer.
Dawson has talked with people who have been involved in the commissions in all respects. He came to the conclusion that the lawyers have unfair advantages in the process. And with the senior judge on the commission, most, if not all of the lawyers who serve on the commission, will one day present a case before the senior judge.
“There’s an inherent conflict right there,” Dawson said.
Laypeople, Dawson said, show up on commission day and in a matter of a 15-minute interview have to figure out who will be a judge for the next 20 or 30 years.
He took exception to Iowa’s system being the model for the nation, saying 16 states have some type of nominating commission and about seven have same type as Iowa.
Outside influence did not create the bill, according to Dawson.
“We have heard complaint for years,” he said. “What’s before us today is the summation of those complaints and trying to reform and update the system to address some of these issues.”
Dawson asked if anyone would be comfortable with allowing half of the natural resource commission to be Exon Mobile folks.
“No one in this chamber, Republican or Democrat, would think that’d be OK,” he said. “Yet that’s what we have before us in our current judicial nominating system right now.”
It’s not an issue with the Bar Association, he said, it’s an issue of giving Iowans more of a voice in the process.
Democrat Sen. Zach Wahls talked about being raised by two homosexual women.
“I remember the day of the Varnum decision very clearly,” he said.
His mom, he said, didn’t come out until the late 1970s. Wahls was born in 1991. She met her partner in 1995.
Wahls recalled having to watch the Republican National Convention of 2004 for homework. He heard Republicans talk about the danger of war in Iraq and then the dangers of a family like his.
“(The Varnum decision) changed my parents’ lives,” he said. “It meant they were able to be in a legal relationship recognized by the state of Iowa.”
Garrett wrapped up comments by talking about the expectation that judges apply the constitution and laws as written without regard for their personal points of view.
“Unfortunately not all of them do that,” he said.
Garrett talked about the 100 members of the House, 50 members of the Senate and governor of Iowa. If the majority approves of a law and the governor sign’s it, he said one judge just needs to find three others to agree for the court to undo what the majority of Iowa wants.
He asked if only attorneys should be able to vote for attorney general, since they understand what the AG does better than most. And should only farmers vote for secretary of agriculture?
Garrett said one of the first bills he introduced in 2011 was a bill like this one.
“Hopefully we’ve reached the tipping point where we’re going to do something about it,” he said. “Our job now is we need to pass the bill, send it over the House and hopefully we can get it passed there and let the Governor sign it.”