From Sen. Charles Schneider’s newsletter:

This week, the Iowa Senate passed a bill (SF 237) to change how Supreme Court and Court of Appeals judges are selected in our state. I understand this bill is controversial. Constituents on both sides of this issue contacted me to express their views. I supported this bill and I would like to take this opportunity to explain why I believe the reforms passed in our bill will improve the selection process.

The Current Process

Our state constitution outlines a process for selecting judges that many Iowans may not understand. When there is a vacancy on either court, a judicial nominating commission meets to select nominees to fill the vacancy. The governor’s appointee must be one of these finalists.

Iowa’s process puts elevated importance on the composition of the nominating commission. The commission has seventeen members. The governor appoints eight commissioners who serve staggered six-year terms. The governor’s appointments are subject to Senate confirmation. The other eight members are elected by Iowa lawyers. The most senior justice on the Iowa Supreme Court who is not the Chief Justice serves as the chair and the seventeenth member of the commission.

Potential Conflicts Of Interest

The process is not without its flaws. One has to do with the role of the senior justice. As chair, the justice heavily influences the ground rules for selecting his or her next colleague. The rules, including the commission’s voting process, can play a critical role in how the commission arrives at a decision on who to recommend to the governor. For bar-elected commissioners who argue cases before the Supreme Court, a justice’s recommendation to the commissioners on rules or a particular candidate may present a conflict of interest. Senate File 237 removes this potential conflict of interest by removing the justice from the commission and letting the commissioners elect their own chair.

Partisan Politics In Senate Confirmation

Second, Senate confirmation of gubernatorial appointments injects partisan politics into the process. I can recall gubernatorial appointments to the commission being voted down during my time in the Senate. While I cannot speak to motive, I think it is fair to say that politics plays a part in the confirmation process regardless of which party controls the chamber. Senate File 237 removes the Senate confirmation requirement, taking that political process out of the equation.

One Party Dominates What Should Be A Nonpartisan Group

Third, while the constitution provides that commissioners “shall be chosen without reference to political affiliation,” in practice governors nominate commissioners who share their party affiliation. Furthermore, lawyer-elected lawyers are usually Democrats:

Lawyer-Elected Commissioners:

2003-2005 2005-2007 2007-2009 2009-2011 2011-2013 2013-2015 2015-2017 2017-2019
Democrats 4 5 5 5 7 6 6 6
Republicans 1 1 1 1 0 1 1 1
No Party 2 1 1 1 1 1 1 1

When the governor is a Democrat and appoints Democrats to the other eight positions on the commission, it is dominated by Democrats. I don’t believe voters intended to enable one party to have total influence over the commission, but this can be the result.

Senate File 237 protects against this happening by providing that all lawyers will be appointed rather than elected. The bill also lets legislative leaders from both parties appoint commissioners. I was skeptical of this at first, but upon further reflection I think this is a reasonable way to protect against every member of the commission being from the same political party. It complies with Iowa’s constitution because commissioners still are chosen without reference to political affiliation while acknowledging the reality that elected officials are likely going to appoint people from their own party to the commission.

Lack Of Rural Iowa Lawyers

Fourth, while the constitution requires “[d]ue consideration shall be given to area representation in the appointment and election of judicial nominating commission members,” there is a lack of rural lawyer commissioners. There is representation from each of the state’s judicial districts, but it is usually from the largest cities within those districts. Today, two lawyer-elected commissioners are from Sioux City. There is one commissioner from each of Des Moines, West Des Moines, Cedar Rapids, Davenport, and Waterloo. Only one is from rural Iowa (Swisher).

The reason for this disparity is simple: urban lawyers know more lawyers and are in closer proximity to their peers than rural lawyers. It is, therefore, much easier for an urban lawyer to get the number of signatures needed to be on the ballot. It is also easier for urban lawyers to get the votes needed to win election. Senate File 237 requires that all lawyer members be appointed. This levels the playing field for rural lawyers who want to serve on the commission.

SF 237 Removes Partisan Politics From The Process

One of the arguments against SF 237 is that it injects partisan politics into the process of selecting judges. Nonsense. Senate File 237 makes the current process less political by removing Senate confirmation of the governor’s appointments. It also guards against the very real possibility that under our current system every commissioner could belong to the same political party.

Our Judges Will Still Be Among The Best

Some opponents of SF 237 claim that it will reduce the quality of Iowa’s judges and the judicial branch. They point out that the U.S. Chamber of Commerce has consistently rated Iowa judges and the judicial branch as among the best in the country and claim that SF 237 places that ranking in jeopardy. This claim is impossible to prove. To be fair, however, let’s take a look at how the state on whose merit-based system SF 237 is based – Connecticut – performed in the same survey.

The U.S. Chamber of Commerce 2017 Lawsuit Climate Survey gives Iowa and Connecticut similar overall rankings. Iowa and Connecticut also rank similarly for Trial Judge’s Impartiality. Connecticut scores higher than Iowa in the categories of Trial Judge’s Competence and Quality of Appellate Review. If this is any indication, then Iowa will still have one of the best judicial branches in the U.S., and outcomes in the Court of Appeals and Supreme Court may even improve.

Iowa Connecticut
Overall 13 16
Trial Judge’s Impartiality 9 10
Trial Judge’s Competence 21 9
Quality of Appellate Review 11 8

While we may draw different conclusions on this legislation, we all want a strong, reliable, and independent judiciary. That begins with the process for how we select our judges. An honest evaluation of our current process shows some deficiencies that need to be addressed. Senate File 237 addresses those shortcomings and will ensure that our Judicial Branch remains among the best in the country.