A subcommittee in the Iowa Senate for Senate Study Bill 1101 on Wednesday afternoon centered around the possibility of altering the process for selecting judges in the state of Iowa. It ultimately passed out of subcommittee with Republican Senators Dan Dawson, Julian Garrett and Jake Chapman supporting the move while Democrat Senators Rob Hogg and Kevin Kinney did not.
Garrett described the present situation for selecting judges in Iowa, noting that the commission is made up evenly of members appointed by the governor and members elected by the Iowa State Bar Association. The commission is chaired by the Justice of the Supreme Court who is not the chief justices, but next line in when it comes to seniority.
A similar scenario determines district court level justices as well.
The bill in subcommittee would change the way commission members are selected. The governor would appoint half the members while leadership in the House and Senate would appoint two members each, so there’d still be 16 in total, but lawyers would not automatically make up half of the commission.
“It basically takes the practicing attorneys’ votes out of the mix and inserts the legislative leaders who will then appoint the other half,” Garrett said.
Sen. Hogg started by saying it’s a big issue and the current process in place since 1962 has seemingly worked well.
“Iowa has a merit-based selection process and generally our judiciary is regarded among the best in the country if not the best,” he said. “Because we have merit-based selection, it’s taken politics out of the process. I’m very concerned that a bill of this magnitude is trying to insert legislative leaders into the selection process without giving the people of Iowa a chance to vote on it. I had expected you’d come up with a constitutional amendment. I question whether the bill in front of us is constitutional.”
Hogg also said he failed to remember Gov. Kim Reynolds or any Iowa legislature candidates campaigning on the issue.
“I have heard from nobody what the problem is that’s trying to be solved by this,” Hogg said. “I think we need to slow this down and give the people of Iowa a chance to weigh in on it. I do think you’re better off bringing a constitutional amendment. I don’t understand the rush to get it done.”
Drew Klein of Americans For Prosperity spoke in favor of the switch.
“Even before this language came out there was a lot of discussion already that some how the current majorities were going to move to politicize the courts and I just find that really naive to see how in the third branch of our government politics hasn’t seeped in,” Klein said. “The reality is the courts are already political, except we’ve limited the conversation to only licensed lawyers in the state of Iowa. That’s problematic. We’ve created super citizen lawyers to have a say in one-third of our government.
“If we open this conversation up and allow the Iowa voters to have a say in this in electing legislative leaders, then I don’t see how we get anything but better than the system we have right now. We hear a lot about a merit-based system, but we’re not grading the lawyers. We’re not grading the judges themselves. Evidently merit-based simply means a lawyer, someone who went to law school and got a degree, is some how more qualified to tell us how our courts should run. That flies in the face of the humility of the lawmakers who wrote this amendment.”
Pete McRoberts of the ACLU spoke in opposition, saying it harms separation of powers.
“Under no circumstances would you accept the court or the governor telling you who the president of the Senate should be,” he said. “I’m concerned there may be an argument as to whether or not it’s constitutional.”
Jim Carney of the Iowa State Bar Association spoke at length in opposition to the bill. He guessed the association had talked with 60-70 legislators about the issue in the first three weeks of session and said most don’t understand the current process. There were also very few, if any complaints, with how the current system is working.
“I agree with the fact that this thing should take some time,” he said. “It’s been in place for 57 years. There aren’t five legislators who can explain the judicial election districts in this state who we talked to.”
Carney acknowledged politics are involved in the process, but said it’s at a minimum. Of the 14 judicial districts, he said 12 are controlled by Republicans and two are an even split.
“That’s not bad or good, it’s just a fact,” Carney said. “This bill will hyper-infuse politics more into that. It really will. It will mainline politics into it.”
Attorney Bill Gustoff spoke in support of the bill, noting he’s hand a long interst in issues of judicial reform. Gustoff was once nominated to the state judicial nominating commission, though his nomination was unsuccessful.
“It’s not about removing attorneys,” he said. “Half of the commissions will still be licensed lawyers — same as the commission now. It’s just how they’re chosen that’ll be different.”
He has concerned about conflicts of interest in the current system. And he’s convinced politics is entrenched already in the courts.
“Anybody who says there are not politics in the court system is either naive or hiding an agenda,” he said. “I’ll fully admit to you there are politics in a branch of government — it’s inherent.”
Hogg chaired the subcommittee where Gustoff was questioned in 2011, Gustoff said.
“Eight senators quizzed me for an hour or so and asked about political donations, asked whether I represented The FAMiLY Leader, how I voted in judicial retention elections,” Gustoff said. “The only reason I agreed to being nominated was because the system is so political and I wanted to take those arrows to prove it.”
Brad Epperly of the Iowa Defense Counsel Association is registered undecided. He said it is clear the legislators have put much thought into the bill.
Sen. Dawson asked Epperly if all members of the association agree the commissions should not be touched.
“No,” Epperly said.
Connie Ryan of Interfaith Iowa Alliance strongly opposes the bill.
“In my 10 years of lobbying i’m not sure I’ve seen a bill with greater legislative overreach than this,” she said. “Without a doubt this bill will do great harm to Iowans and their ability to have a fair day in court.”
Ryan said the desire to alter the nominating commissions is rooted in disdain with recent court decisions that went against conservatives’ wishes.
“You will place our courts in harms way simply because one small group in our state is frustrated with a handful of court decisions that they do not agree with,” Ryan said. “That is simply wrong and it is bad public policy.”
Chuck Hurley, who represents The FAMiLY Leader spoke after Ryan and was the target of Ryan’s comments. Hurley said he spent 35 years being an Iowa lawyer and was former House Judiciary chair.
“We believe it is past time to modify how judges are selected in Iowa,” he said. “As you well know, it doesn’t matter if you and your fellow lawmakers pass good legislation if it’s just going to be undone by activist judges exceeding their rightful constitutional authority. Iowa has one of the most activist Supreme Courts in the country with rulings against law enforcement, a ruling finding an evolving standard and right to abortion and a ruling redefining marriage — all in direct defiance of your duly passed laws.”
Hurley pointed to a study cited in Vanderbilt Law Review that ranked Iowa’s Supreme Court as the second most liberally skewed of any state court in the country.
“It got that way in large part, we believe, because the nominating commissions that pick our judges are often stacked by a special interest group who is not representative of everyday Iowans,” Hurley said. “We’re out of balance. They have put politics into the system.
“It is just plain unAmerican for a small group of 8,000 unelected, unaccountable lawyers — of which I am on — to essentially choose one-third of our state government. It’s even worse for that one-third to erroneously chide the other two-thirds of our government that they are wrong. That the legislature and governor can’t protect babies’ lives from abortion or can’t preserve the 6,000-year-old definition of marriage or a plethora of other common-sense laws.”
David Brown is the secretary-treasurer of the Iowa Academy of Trial Lawyers.
“Don’t take the whole system and blow it up,” he said. “The way I look at this is a power grab. That’s exactly what it is. I don’t think this is very well thought out. I think we’ll end up regretting moving at this speed. It’s something to study, but in terms of implementing this as an agenda item on partisan politics where elected officials are making calls to the third branch of government, I don’t think we even know how far that’s going to get out of hand.”
Iowa, Brown said, is considered the gold standard of the judicial nominating process.
Sen. Dawson, though, asked how Iowa could be the envy of the other states if other states have the same format for the nominating process.
Sen. Garrett asked if all these people Brown was citing were attorneys.
“Not necessarily,” Brown said.
Keenan Crow of One Iowa Action spoke against the change. He questioned whether a switch would make things more fair in the long run.
“Unfortunately that’s not the question I hear being asked today,” Crow said. “Over and over I hear folks like Mr. Hurley upset with this decision or that decision. They wish the opinion would’ve gone their way. That’s what happens in a fair system. Sometimes the decision just doesn’t go your way. Your response shouldn’t be to politicize the judiciary in order to get the decisions you want.
“The LGBT community has gotten a number of great decisions from Iowa courts,” he said. “We didn’t get the Varnum decision by politicizing the courts. We had the best argument. We believe our arguments are good enough to win under those circumstances. If you believe your arguments are good enough to win, let’s keep our judiciary selection process the way it is. Let’s give everybody here a fair shot at justice.”
Jamie Burch of Planned Parenthood of the Heartland and Planned Parenthood Voters spoke in opposition as well, saying the bill puts Iowa’s system of checks and balances in jeopardy.
“Iowa’s judicial nomination system is often regarded as the best in the country,” Burch said. “We don’t think Iowans should settle for less than that. If the concern is its overly political, you don’t remove politics by adding more politics.”
Sen. Hogg had some concluding remarks, saying the last three justices appointed to the Iowa Supreme Court were Republicans justices. If the thought is the system is flawed, he said, then the thinking must also be they are flawed justices.
“To me, if you’re really bothered by a couple decisions, offer constitutional amendments and try to address those decisions,” he said. “Don’t go after a judicial nominating commission that has worked and been recognized routinely by the Chamber of Commerce as one of the best processes in the country.”
Sen. Kinney referred to his experience working in the criminal justice system.
“I could give a rat’s ass if you’re Democrat or Republican,” Kinney said. “All I want is a judge that is fair. The people who are nominating these individuals are attorneys — they know who the good attorneys are. I just think that we are breaking something that doesn’t need to be fixed.”
Sen. Dawson noted some version of the bill has existed for nearly 10 years.
“This is an issue we have grappled with in the legislature,” he said. “I’ve heard multiple comments here today regarding Republican/Democrat, left/right. I agree with Sen. Kinney. I wrote a letter in support of a Democrat attorney on the commission. I really couldn’t care less what party they’re aligned with.”
Dawson said the big problem with the nomination process is the preference given to lawyers.
“For me to get on the state nominating commission, I have to put an application into the governor’s office. I have to get approved by the governor and then go through the Senate confirmation process,” Dawson said. “Sen. Hogg, you are a super citizen. You don’t have to go through any of that. Ask yourselves from a governing standpoint of healthy debate, when we talk about separation of powers, the Iowa Bar has eight of 16 seats. Where are the checks and balances?”
Sen. Chapman pointed out that we’re not a democracy, but a republic. He also noted while there are separate parts of the government, that doesn’t mean they’re all equal.
“There are fundamental constitutional rights of this body and what we’re doing is in accordance with the constitution,” Chapman said.
Sen. Garrett said he’s worked on this issue since 2011 when he was first elected.
“This is my ninth year working on this issue. This is not some brand new idea that suddenly popped up here a month ago or whatever,” Garrett said. “I want to see a judge set aside his or her personal opinions, his or her personal philosophy, who takes the constitution as it is written, takes our statutes and applies them to the case before them without inserting their own personal ideas of what the constitution ought to say or what the law ought to be. To me, that’s the issue we’re trying to deal with here.”
Garrett noted the amount of work that must be done to change the constitution, unless you’re a member of the Iowa Supreme Court.
“If you can convince three other people to go along with you, you can really find divisions in the constitution,” Garrett said. “That’s been done at the federal level and it’s been done here in Iowa.”