Judicial Nomination Process in Iowa

Feb 15, 2019  | 27 min  | Ep 4625 | Podcast

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A long-standing Iowa legal tradition is in the cross-hairs of a republican trifecta at the Statehouse. We dig into the issues surrounding judicial nominating legislation that is making its way through the Capitol on this edition of Iowa Press.

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For decades Iowa Press has brought you politicians and newsmakers from across Iowa and beyond. Now celebrating more than 40 years of broadcast excellence on statewide Iowa Public Television, this is the Friday, February 15 edition of Iowa Press. Here is David Yepsen.  

Yepsen: Republicans in Des Moines have wasted little time in the 2019 legislative session talking major changes to the Iowa system of nominating judges. A long-standing non-partisan commission has previously made recommendations to the Governor for nomination to the Iowa Supreme Court. Conservatives are demanding changes to a court system that has struck down same-sex marriage laws and turned back cases limiting abortion. Some republicans are decrying judicial tyranny, while democrats say proposed changes are nothing more than injecting politics into the Iowa courts. To dive deeper into it all we're joined by a trio of guests today. Republican Representative Steven Holt is Chair of the House Judiciary Committee. Democratic Representative Mary Wolfe is ranking member on that committee. And Allan Vestal is a law professor and former Dean at Drake University Law School. Welcome everybody to the program. Thank you for taking the time.

Thank you.

Great to be here.

Yepsen: Also joining the conversation are Iowa reporters Erin Murphy, Des Moines Bureau Chief for Lee Enterprises and Kay Henderson is News Director for Radio Iowa.

Henderson: Professor Vestal, let's help the viewers at home who may not be familiar with this commission. The Governor appoints half of the members and those are confirmed by the Iowa Senate. How are the other half currently chosen?

Vestal: Currently the other members of the commission are elected by lawyers. So the lawyers who know their peers and know the candidates are electing people who will bring that kind of information to the table then.

Henderson: How does one become nominated?

Vestal: To be one of the lawyers?

Henderson: To be one of the members of the commission.

Vestal: Well, there's both the statewide commission and the regional commissions for the --

Henderson: Judicial district.

Vestal: For the judicial districts for trial judges. And so you're a lawyer and you can run for those commissions.

Henderson: Representative Holt, explain the change that you have proposed.

Holt: Well, what we're proposing to do is right now we have a small group of attorneys that are electing other attorneys. We also have a really big problem with very low participation in this. In the last election in 2018 there were 7,000 lawyers and only 18.45% even bothered to vote. So what we're proposing to do is to have those individuals that are currently being elected by the bar to be appointed by the House and the Senate, by the majority and the minority party in both of those houses.

Henderson: Representative Wolfe, why are you opposed to the change?

Wolfe: Well, I think currently Iowa's judicial nominating system is considered one of the best in the country, our judges are fair, impartial and objective and this proposal does nothing but insert partisan politics right into the middle of our judicial system and that is problematic and it's not good for Iowa, it's not good for Iowa citizens.

Murphy: Representative Holt, to that, what is wrong with the current system? What is wrong with status quo? Is it producing bad judges in your view?

Holt: No, I think the voice of the people is missing. And I would say I think probably the silliest arguments against what we're trying to do is the idea that we're politicizing it. The fact of the matter is that anyone who is familiar with this system or works within this system knows that it is already highly politicized. You've got individuals that are voting for the commissioners that have political views and belong to political parties, same thing for the commissioners who have political views and views on their judicial philosophy. And so we know that there's politics in play. And one of the most blatant examples of that is from 2011 when those three justices were not returned to the bench and you had nine nominees presented to Governor Branstad, one of those was a liberal female law professor who had never practiced law in Iowa and got her admission to the Bar on the day she was nominated when there were plenty of females who were imminently qualified, that were sitting on the bench at the time. That's an example of the blatant politics. So since we already know that there's politics in the process, how about we put the politics of the citizens front and center and their concerns through the elected representatives of the people.

Murphy: Representative Wolfe, is that fair? Isn't there already politics involved? And to expand on that point, Justice Not Politics, which is a group advocating against this bill, by their own count the commission members appointed by attorneys are heavily democratic, 44 democrats and just 25 republicans. So the current system benefits democrats. Isn't that a fair assertion that there's already political elements to the current system?

Wolfe: I think it's important to point out that all of the Governor's appointees are republicans, certainly at the state nominating commission and that in every nominating commission republicans outweigh democrats because unlike what is being said, lawyers are not a homogenous group that all share the exact same philosophy. So any time we elect lawyers some of them are republican, some of them are democrats, and some of them are independents and I think that is what lawyers bring to the table, the fact that we look at each candidate for the candidate, not the political party, as opposed to, again, just simply appointing party, people who are going to adhere to a party platform. We don't want to do that. And that is what will happen with this bill. We're having political leaders appointing the members of the commission. I do not see how having four people at the Capitol make those choices is better than having hundreds of lawyers do it.

Yepsen: Professor Vestal, hasn't Iowa developed a system that has traded partisan politics for Bar Association politics? There's politics in everything, the faculty, TV programs. Who gets what rewards?

Vestal: Well, the system was designed in 1962 to get partisan politics out of the system and it has worked quite well over the almost 60 years now since that took place. Are there political in the sense of allocative decisions being made? Yes. But not partisan decisions. I think you need to take a step back and look at the product that is generated by the commissions. The judges that we have in Iowa across the state are fair, they're competent, they're hardworking and there's no reason to change that system because the product that is being generated is a good one.

Yepsen: Why don't we go back, Professor, to a system of electing judges? Just like other states do, what's wrong with a vote of the people?

Vestal: I've practiced in two other states other than Iowa and I've taught in two other states other than Iowa and they have a wide variety of ways of choosing judges. I think what you want to avoid is a situation where you have people walking into a courtroom to have a case that is very important to them heard and worry about the partisan orientation of the judge that is hearing that case.

Yepsen: Or another question is why don't we go to a system like they have at the federal level where the chief executive nominates someone to the Supreme Court, it's confirmed by the Senate? Why don't we have that kind of system in Iowa?

Vestal: Well, in the federal way of doing it, as you've seen in the recent Supreme Court selections, is anything but non-political. Here we have a situation that is merit based and it's working well and it seems to me it behooves the advocates for change to make a case that it isn't working well.

Yepsen: Representative Holt?

Holt: I will take exception with a couple of those things. First of all, if you look at the historical context, in 1962 they placed a very strange escape clause in the legislation. If you look at it, it says that this system has to be used for 10 years and then after that the legislature can make changes. They did that because even in 1962 they were concerned about a small group of attorneys having too much authority in the process as opposed to the people of Iowa. And that's what we're trying to address here. There is politics involved and I've heard from a number of attorneys who because they are maybe the wrong type of attorney they are shut out of the process. So what we're looking at is a system in which the representatives, the people that represent Iowa every two or four years who are accountable to the people make these selections.

Murphy: But to Professor Vestal's question, doesn't the case need to be made that at the end of the, the end game here, for whatever you think of the system itself, shouldn't a change be made only because there is a bad product being put out? And that's why I asked, do you think there are bad judges? Or is this just a reaction to some recent state Supreme Court rulings, which some of your colleagues in the Senate have pointed to as a reason for this?

Holt: Absolutely not related to specific issues. But it is a fact, and there's numerous studies, there's an Oxford Harvard study, there's a study by Professor Fitzpatrick of Vanderbilt University that shows it's a system that we are currently using produces a judiciary that is to the left of the people. I see four big issues in the system we're currently using. A tiny number of attorneys electing other attorneys without the voice of the people in there, only 18.45% of the attorneys even bothering to participate in the process. I see an issue with an undue influence with the judge and justices being the chair of these commissions and lawyers on these commissions that have to argue cases in front of them and the intimidation that is involved there and I've heard from a number of people involved in that. So I think there are a number of issues that need to be addressed.

Yepsen: Representative Wolfe, what do you make of this whole question of politics? Have we traded partisan politics in Iowa for Bar Association politics?

Wolfe: I just disagree. Again, what Representative Holt keeps I don't know if he's ignoring it or just maybe doesn't realize, that half of the members of every nominating commission, and there's 15 of them, there's a state nominating commission which is what we're focusing on because let's face it, that's what this is about. They want to get conservative judges on the Supreme Court so they hopefully will overturn some of the rulings that our majority party doesn't like. But there's also 14 district court commissions and those are dominated by republicans. I don't think it matters because people work together and it isn't about politics. If we switch to this plan the people of Iowa are going to have to walk into courtrooms knowing that we are putting politics first and that simply isn't how it is. So what we have now is probably the best compromise between politics, which may always be part of this system, and representative democracy.

Henderson: Representative Holt, your republican colleagues in the Senate have been making the argument that the reason for doing this is because of the court's ruling that legalized same-sex marriage, because of the ruling on abortion recently that struck down a law that republican legislators had passed. Why aren't you making that argument?

Holt: Because that's not my objective here. We could have a separate discussion on the fact that the Iowa Supreme Court is to the left of the U.S. Supreme Court on a number of issues, search and seizure, finding on the issue of abortion setting the standard of strict scrutiny as opposed to undue burden on the federal level. So we can talk about a number of cases that I would believe that the Supreme Court have gotten wrong but that is not what we're talking about here. We're talking about a system that I believe is not representative of the people because you've got 18.45% of this attorney group that are placing these folks on the commission and I don't think that is the way we need to do it.

Henderson: Would you be proposing this if Fred Hubbell was Governor?

Holt: Yes. And as a matter of fact, Representative Wolfe mentioned the number of republicans that are currently on the commissions, after a short time when the democrat was Governor, 14 of the 15 commissions were controlled by democrats and there were two of the commissions that had no republicans on them at all. It has taken us eight years to get to the point where we have a majority of republicans on 11 or 12 of the commissions. So there is a heavy swing in this system when a democrat becomes Governor because of the fact that the Bar has a tendency to tilt to the left.

Henderson: Representative Wolfe, did you ask for this? Did democrats go too far?

Wolfe: No. And I don't think anybody is asking for this. When this bill dropped with no input from democrats or as far as I know any of the parties involved, that was the first I'd heard that anybody had a problem. When I was campaigning I have never once had somebody say we need to change the way that we appoint commissioners to our judicial nominating commissions and no one showed up at the subcommittees on these bills and were able to express any reason for this other than they don't like the decisions by our Supreme Court who I thank God for every day.

Yepsen: But, Representative Wolfe, what are those people supposed to do? In a democratic society aren't all public officials including judges answerable to the people?

Wolfe: Well, I think a fundamental part of our judicial system is that it is independent from day-to-day, I guess from popular politics, right? So their job is to look at the Constitution and that our laws that we pass in the legislature and make sure that they meet constitutional scrutiny. It's not about politics. So no, they aren't answerable to the people. If they were answerable to the people we'd be living in a much different state and a much different country and I don't think the people would like it.

Yepsen: Professor Vestal, you understand the complaint that conservatives are making. What are they supposed to do?

Vestal: The answer is that if people are opposed to the decision that was rendered, take the Varnum case, for example. If you're opposed to that you can change the Constitution. You can change the equal protection clause of the Iowa Constitution. But I must say, the Iowa Supreme Court was exactly correct in the Varnum decision, in a unanimous decision that followed decisions as to four other states, that was followed by 25 other states and then the Supreme Court. So if you want to change the outcome of Varnum, change the Constitution.

Yepsen: Well, you can also go into a retention election and turn people out of office.

Vestal: You can, but retention elections shouldn't be used to object to specific cases, they should be used for judges who aren't doing their duty. And the judges in Varnum did their duty.

Holt: There's so many things I would disagree with on the statements I just heard. First of all, one of the reasons we're at the place we're at today, and again we're getting off on a discussion that I think isn't related to what we're trying to do here, but I will answer these concerns. The judiciary has a specific role in our three branches of government and that is to interpret the law, the legislature is here to make the laws and so I think a lot of folks would argue that the judiciary is practicing judicial activism and is legislating from the bench in a number of areas. And so that is why we're at this point in some aspects today. But that is not what we're talking about here when we're talking about a voice of the people in this process.

Murphy: But wouldn't the counter to that be that republicans in these cases are just writing laws that aren't constitutional and don't pass constitutional scrutiny instead of what you're saying which is that the courts being activists couldn't someone else just say pass a law that fits within the framework of the Constitution?

Holt: No, I don't agree with that at all. I reject judicial activism be it conservative or liberal. There is no fundamental right to abortion in the Iowa Constitution. And so there is life talked about in several places in the Constitution. There's no fundamental right to abortion in the Constitution. In fact, I would argue there is a fundamental right to life. But again, we're getting in a different area here in a discussion that really isn't related to what we're trying to do with this nomination reform.

Henderson: Professor Vestal, rural attorneys say it's very difficult for them to get on the commission because they have to get petition signatures from 50 fellow lawyers and it's just too difficult, it's tilted towards urban and suburban lawyers.

Vestal: There is a complaint about that. And if you look at the lawyers who have been on the commissions over time I think they have a reasonable case to be made. But the problem with the solution that is being carved out here is it's nothing but a political spoil system. There's no guarantee that rural lawyers are going to get better representation once you change it to a partisan political selection process. So I think do they have a complaint? Absolutely. Is this a solution to it? Absolutely not.

Henderson: Representative Holt, are you confident that let's say the House Majority Leader is going to name someone in Lohrville, Iowa when he lives in suburban Des Moines?

Holt: I'm absolutely confident of that. It's going to be a process just like we go through caucus or legislation. It's going to be a collaborative process. So I'm absolutely confident in that. And you can talk about the current process in which you've got 18.45% of attorneys electing other attorneys. There's going to be challenges in any system you come up with but I think this would be far more transparent and representative of the voice of the people.

Yepsen: Representative Wolfe, what do you think of that?

Wolfe: I think that the claim that this system will somehow be more accountable to the people is ludicrous. Speaker Upmeyer is not accountable to the people of the 7th judicial district. So none of the people who will be the four people who will be appointing members are accountable to any of the members of my district.

Yepsen: How do we address the question Kay raises that rural Iowa feels left out of this process, most lawyers are living in larger communities and that they're left out? How do you address that concern?

Wolfe: I think that's a legitimate complaint being from a more rural area myself and there are certainly ways that that could be addressed. This bill does nothing to address it.

Murphy: Representative Holt, if you have concerns about the current makeup of the system favoring democrats I'm just curious what your thoughts are looking ahead to what your proposal would do giving a significant influence to the party in control of the Governor's Office would have 12 of the 16 nominations. There will assumedly be a day when there is a democratic Governor which will significantly advantage democrats then.

Holt: And thank you for that question because I think it speaks to the fact that we want the voice of the people even if the democrats control all three houses. Look, the winds are going to change and someday there will be a democrat in the Governor's mansion, I hope not, but you know likely that will happen at some point. If they end up getting 12 of those 16 on the commissions that is the voice of the people speaking through the elected representatives and I don't have a problem with that.

Murphy: Representative Wolfe, why not ride this out until 2022, win the Governor's mansion back and enjoy that advantage?

Wolfe: Because that wouldn't be a good choice. This should be about independent judiciaries, the people sitting on these commissions should be people who have expertise in the area and who also aren't thinking about politics.

Murphy: Professor Vestal, you look like you want to weigh in here.

Vestal: The irony here is that in the statute itself that has been proposed there is a provision that the appointments are to be made without regard to the partisan political affiliations of the people. Now, do you seriously listen to what Representative Holt is saying and think that it's not going to be a partisan allocation? Of course it is. So the statute itself belies what will actually happen.

Yepsen: Representative Holt, what about that?

Holt: Well I don't agree at all. I think that the system currently is obviously there's partisan politics involved in the system right now. So the idea that our system, I think it would definitely improve it.

Murphy: So real quick here, how about most other boards at the state level have a partisan balance requirement. Why not have that for the judicial nominating commissioners?

Holt: Well, we have looked at what we can do constitutionally and we can affect what we're doing with the commissions. We're certainly having discussions on what ways we might be able to improve this legislation. It is certainly not a done deal. That is something that was actually brought up by Representative Olson who is a friend of mine, a democrat in the House. So we're looking at things that can be done. But the short answer is we're not sure we can do that constitutionally.

Yepsen: Representative Wolfe, what do you think about this gender balance, partisan balance? Is there some way you can maybe tweak this legislation to make it more acceptable?

Wolfe: I think we could tweak the current system to provide more political balance. I think any plan that replaces the attorney input with four people in Des Moines picking commissioners that sit on boards across Iowa just is unacceptable. It will put politics right into the middle of what is supposed to be an objective, impartial process that right now is considered one of the best in the country.

Yepsen: Let me ask you this question. If you're a conservative and you're unhappy what would you do then?

Wolfe: I don't know, why would they be unhappy? They have, right now they control all of the commissions across the state and as far as I know pretty much every judge that has been appointed in the past 10 years I suspect they're republicans. And that's fine with me because they are good people and they have been vetted by an independent commission that knows what they're doing. So why would we change that unless the idea is let's make sure we can stack the courts and let's make sure we don't have to listen to any input from the other side. That's all this is about and that may not be Representative Holt's intent but there are some very vocal people in his camp that are making it clear that is their intent.

Henderson: How quickly would this go into effect if the House and Senate pass it and the Governor signs it into law?

Holt: Well, we have provisions that the commissioners would go off immediately and the process would begin. And so those things are stated in the bill as far as the effective date.

Henderson: This year then.

Holt: Yes.

Henderson: By June?

Wolfe: Overnight.

Henderson: By July 1st?

Holt: And again, I could take exception with just about everything that Representative Wolfe just said because, again, we're not trying to stack the deck in any way, shape, form or fashion. In fact, she kind of makes the argument for me that we're trying to put a voice of the people into this process through their elected representatives.

Henderson: Representative Wolfe, won't this be litigated? I mean, won't someone file a lawsuit challenging this bill?

Wolfe: I'm sure they will. I think there's a real question as to whether or not we do have authority to legislate a change in the way the commission members are put onto the commission.

Yepsen: Excuse me, let's ask the expert. Professor, what do you think? Will this be litigated? Assume it becomes law, will there be a court challenge?

Vestal: There may be a court challenge to it. But the bigger question is whether the legislature is actually going to go forward and do this on the weak and insufficient record that they have before them. I think it's a very bad idea to legislate in this area before you've even done the kind of background investigation that one would expect you to do. You cite the Fitzpatrick study. Fitzpatrick ends up, if you look at Iowa --

Yepsen: What is Fitzpatrick?

Vestal: Fitzpatrick is a law professor from Vanderbilt who just spoke recently about it and had an editorial about it. Fitzpatrick decides that the Iowa judiciary is skewed left, as he puts it, on the basis of a study where he didn't study the behavior, the actions of the judges, he looked at campaign contributions and he didn't even look at campaign contributions, he ends up with 12 people that he looked at over 20 years.

Yepsen: We've got just a couple of seconds left. Do you think this could be overturned by the Supreme Court itself?

Vestal: I hope it doesn't get to that.

Henderson: Representative Holt, will there be companion legislation to change the Constitution at some point?

Holt: We're not looking at this time at amending the Constitution. We believe we're absolutely on solid legal ground in what we can do to change the commission process. We believe it is absolutely necessary for the people of Iowa. But we're not looking at amending the Constitution at this time.

Yepsen: We've got way too many questions and I'm out of time.

Wolfe: Thank you.

Yepsen: Than you all for taking time out to be with us today. We appreciate it.

Wolfe: Thank you.

Holt: Thank you.

Yepsen: And thank you for joining us. We'll be back with another edition of Iowa Press next week at our regular times. For all of us here at Iowa Public Television, I'm David Yepsen. Thanks for joining us today.

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