Examining judicial selection post-Varnum

Every winter as the temperature dips down and the snow piles up, the Iowa Legislature convenes with old and new faces as well as old and new ideas.

For years, an undercurrent of skepticism and questioning of the Judicial Branch has buzzed along due to differing views lawmakers may have had with a particular court or particular decisions, but that dissent largely stayed below the surface.

That was until April 3, 2009. On that day, the Iowa Supreme Court issued the Varnum v. Brien decision. The ruling sparked just about every emotion from jubilant celebration to consuming anger. No matter how it was subjectively viewed, the case was nothing short of a landmark if for nothing else, because it cracked opened the door that allowed suppressed skepticism of the court to rise to the surface.

Initial ripples of anger developed into a movement to oust three Supreme Court justices. Fueled by out-of-state contributions, the movement garnered speed and succeeded in ending their tenure on the court. Setting aside whether the retention vote was right or wrong, it cast light on how Iowa’s judicial selection process works.

Currently, the commission narrows the list of judicial applicants down to three names. From there, the governor makes an independent selection. The commission is comprised of appointees by the governor, attorneys elected by their peers, and the most senior Supreme Court justice who is not the chief justice.

This process is known as the Merit System, or Missouri Plan, and is widely renowned as the best judicial selection method as it does more than any other available alternative to eliminate politics from the process. It is not a perfect system, but it is the best available which is why lawmakers, as well as the people of Iowa, amended the Iowa Constitution in 1962 to include this very system.

Now nearly 57 years later, lawmakers have put forth a bill to change the system.

The most recent proposal eliminates nearly half of the existing commission members, replacing them with select individuals chosen by the respective leader of both the House and Senate.

Proponents of this change argue that it would remove liberal trial attorneys’ influence over the court.

To note the obvious, the current members of the Iowa Bar who are elected by their peers to serve on this commission are not chosen based on party affiliation, nor do they even hold a majority on the commission, nor do they actually get to select the justice for the vacancy as the governor gets the final word. This proposal makes the assumption that commission members simply mark a check next to a potential justice’s name based upon political party.

In reality, candidates to fill vacancies are vetted and interviewed in front of the public. These hearings are even live-streamed now for all to see. Questions of past decisions, practice areas, and knowledge of the law are routine, but omitted in this process are partisan questions.

In fact, if you ask most Iowa attorneys what they look for in a justice, you will not hear the words Democrat, liberal, Republican, or conservative. Instead you will hear “knowledge of the law,” “temperament,” “fairness,” and “integrity.” Iowa lawyers do not want partisan courts; they just want to put forth the best individuals for the job, and they can offer keen insight within the commission.

Lawmakers should be careful not to be short-sighted on this matter. Certainly it is far better to appear in front of an impartial justice who knows the law and will correctly apply it to the facts at hand than a Justice advanced because of party affiliation. Disrupting a system that is proven to work by shifting the power of appointment to three individuals — the governor, House leader, and Senate leader — will set us down a slippery slope to an inherently partisan judiciary. Three partisan individuals will hold the keys to what is and should always be an independent judiciary.

Look to states with partisan selection processes and see how the money flows. You’ll find state and federal PAC money backing judicial elections, campaign promises on vague issues as opposed to knowing the law, raising money instead of knowing the facts of a case, and focusing on re-election as opposed to impartiality.

In today’s hyper-partisan world, the question becomes: Do we really want to add more partisanship? Everyone will disagree with a court ruling along the way, but so long as we have an independent Judicial Branch, as free as it can be from partisan actors, we can at least find some comfort in the rule of law.

Lawmakers should not be quick to sacrifice the long-term interest of the Judicial Branch for short-term political points. Iowa needs an independent, impartial judiciary. Iowa does not need this change.

Neven Conrad is an attorney serving North Central Iowa and a Fort Dodge city councilmember whose Drake Law School education involved a primary focus on the topic of judicial selection.

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