Seeking to change the way applicants for the state Supreme Court have been vetted for nearly six decades, Iowa Republicans are embracing a plan that could increase the party’s sway beyond the more than 2-1 advantage it now has over Democrats in deciding which finalists to present to the governor.
That statewide nominating commission, which also advances finalists for Iowa Court of Appeals vacancies, is 69 percent Republican and 31 percent Democratic — leaving the GOP with a far greater share of representation on the panel than it has in the Iowa electorate overall.
When taken as a whole, Iowa’s state commission and 14 district commissions that vet local judges already are dominated by Republicans, an independent analysis of voter records by The Gazette found.
Only two of the district commissions — in the state’s most populous areas of Polk County (District 5C) and the region including Linn County (6th District) — are not controlled by Republicans, the newspaper’s analysis found.
While Senate and House Republicans last week split on how encompassing the GOP overhaul would be — the House plan would largely leave the smaller commissions as is — some advocates of changing say the current system that involves attorneys can produce judges who impose their own views.
Republican Gov. Kim Reynolds, who supports making a change, Thursday told a rally of anti-abortion rights activists advocating the bills in the Capitol she hoped to appoint judges “who will apply the law and adhere to the Constitution of Iowa and the Constitution of the United States, not inject their own philosophy.”
Heeding such criticisms back in 2010, Iowa voters booted off the Iowa Supreme Court three justices who had agreed with the court’s opinion allowing same-sex marriage. To fill the vacancies in 2011, then-Gov. Terry Branstad named three new justices he said in a statement would “faithfully interpret the laws and Constitution, and respect the separation of powers.”
Bruce Zager, then a district judge, was one of them. Today, Zager said he doesn’t see a reason to change the process.
Zager, who retired last fall from the state Supreme Court but kept senior status, went through nominating commission interviews three times before being appointed as a 1st Judicial District judge and then several more times for appointment to the Iowa Court of Appeals and then the Iowa Supreme Court.
Stressing he wasn’t speaking for the court but only for himself, Zager said in an interview he doesn’t understand how the proposed changes would make the selection of judges better.
He fears the changes could have a “chilling” effect on the applicant pool — that some qualified people might not even apply if they believe only those with political connections will be nominated and picked.
When he has attended national conferences with judges from around the country, Zager said, they were “envious” of Iowa’s judicial merit selection system, in which judges do not have to run against each other in elections like they do in some states.
Role of lawyers
Measures introduced in the House and Senate take issue with the role lawyers play in the nominating process.
Currently, the governor appoints half the members of judicial nominating commissions and lawyers elect other lawyers to the other half.
The commissions interview candidates to become judge or justice and forward three names for each vacancy to the governor, who picks one.
The judges and justices later face voters, who decide if they retain a seat on the bench.
The Senate measure still contemplates eliminating lawyers from picking other lawyers to serve on any of the commissions. The House version was amended last week so that lawyers would play much the same role they do now on the district panels — but not the statewide one.
The amendment Wednesday to House Study Bill 110 squeaked through the House Judiciary Committee by one vote — 11-10.
House leaders said earlier their main focus was on the state commission, which nominates to the Court of Appeals and state Supreme Court.
The measures for the state panel call for eight members to be appointed by the governor — the same as now. The majority and minority party leadership of the House and Senate each would appoint two lawyers, and the Iowa Supreme Court would appoint one lawyer — replacing lawyers electing lawyers.
Tom Levis, president of the Iowa State Bar Association and a West Des Moines lawyer, said he was glad to see House Republicans mostly exempt district nominating commissions and delete other provisions in the original bill, which would have allowed the governor to appoint associate district judges and magistrates.
But the bar still is opposed to this version because it “interjects partisan politics into the courts,” Levis said. Assertions that lawyers hold too much control over the nominating commissions aren’t supported by facts, he said.
The Gazette reviewed the affiliations of the 154 people who serve on the state judicial nominating commission and the 14 district commissions.
Of the 77 nonlawyer commissioners — all appointed by Branstad and Reynolds — 70 are Republicans, three are Democrats and four have no party affiliation, state records show.
Of the 77 lawyer commissioners elected by attorneys, 25 are Republicans, 43 are Democrats, eight have no party affiliation and one is vacant.
“Based on simple math, the Republicans control the commissions,” Levis said. “And if you look at the combined nominating commissions, it has a higher proportion of Republicans, about 29 percent, than (voters) registered in the state.”
In Iowa, 32.5 percent of registered voters are Republicans, 31.5 percent are Democrats and 36 percent are no-party, according to the Secretary of State’s Office.
Republican commissioners have majority control on nominating commissions in all but two judicial districts.
In the 5C District — Polk County — the nominating commission is split half Republican and half Democratic.
In the 6th District — Linn, Johnson, Jones, Benton, Iowa and Tama counties — the nominating commission is 50 percent Democratic, 40 percent Republican and 10 percent no party.
The State Judicial Nominating Commission is the main concern, Republican lawmakers say.
Currently, the membership breaks down to eight appointed Republicans, three elected Republicans and five elected Democrats.
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State Sen. Julian Garrett, R-Indianola, floor manager of Senate Bill 237, said the public can vote a governor out of office if they don’t like his or her appointments.
But the public has no such power over lawyers who elect other lawyers.
Iowa, he said, needs judges who can set aside their “personal points of view” in their rulings.
He cited an Iowa Supreme Court ruling in June — which said the law mandating a 72-hour waiting period for an abortion was unconstitutional — as one reason behind the proposal.
The merit-based process for selecting Iowa judges and justices has been in place since 1962 and is written into the Iowa Constitution. U.S. Sen. Chuck Grassley helped develop Iowa’s system when he was in the Iowa House.
A Des Moines Register/CNN/Mediacom Iowa Poll this month found 54 percent of Iowans favor the current system; 33 percent favor a change; and 13 percent were not sure.
Other state legislatures also are considering altering rules that would affect the judiciary, according to the Brennan Center for Justice, a public policy institute at New York University Law School.
The center found 32 bills in 19 legislatures that would give more control to lawmakers over judicial selection, decision-making and administration.
In 2018, lawmakers in 18 states were considering 60 bills that would have increased the role of politics or limited the independence of state courts, the Brennan Center reported.
Earlier in the week, Senate Majority Leader Jack Whitver, R-Ankeny, said GOP lawmakers want to reform the system here to make it fair.
It’s not about partisanship, he said, but about conflict of interest.
Lawyers who elect half the lawyers on judicial nominating commissions have an outsize influence in the process of selecting judges, he said.
“There are, what, 10,000 or so lawyers in the state and there are 3 million people. How is that fair?” he asked.
House Judiciary Committee Chairman Steve Holt, R-Dennison, seemed to have a slight change of heart late last week about the role of lawyers — at least on the district panel.
He said there were concerns legislative leaders who would select the district members might not be representative of those judicial districts. House leaders concluded lawyers who work and live in those districts, though, would be.
“We also heard from the public that the district commissions worked well, so we didn’t change those,” Holt said.
The amended version does require one member on each of the 14 district commissions to be appointed by the Iowa Supreme Court, like the state commission; and adds rules for electing a chair, which would no longer be a senior judge.
The amended bill could be debated by the full House as early as this week. Similar legislation, Senate File 237, already has advanced but currently varies from the House version in the way it would change the district panels. Any changes would have to be debated on the Senate floor.
Karen Fesler, a Republican from Coralville who the governor appointed to the 6th District commission, said she doesn’t understand the need for change.
“I’m disappointed the Legislature is involved,” Fesler said. “The lawyers and citizens have mutual respect for one another. Political parties never come up — it doesn’t matter. We want the best candidate. We look at an applicant’s experience, background, how long they have been in practice, their demeanor.”
Steven Armstrong, a Republican from Cedar Rapids, also appointed to the 6th District commission, said proposed legislation may have “unintended consequences” — bringing politics into judicial appointments.
Armstrong said he never felt lawyers on the commission tried to take over or influence the panel’s selection of finalists to send to the governor. Armstrong said each commissioner had his or her own ideas and say in the process.
Anjie Shutts, a Des Moines lawyer who is a Democrat elected to the District 5C commission, said she respects the lay people on the commission because they bring their own experiences and add perspective.
“Everyone has a vote — we are equal partners,” Shutts said. “We’re not interested in politics.”
Thomas Bernau of Des Moines, a Republican appointed to the District 5C nominating commission, said he can see both sides of the issue because he was appointed — but he’s also a lawyer.
He doesn’t think the proposed changes are a bad idea or that they will “damage” the system.
Bernau said it’s beneficial to be a lawyer-commissioner because he may see things about an applicant’s education and experience that a lay person might not.
David Boyd, a former executive secretary for the 3A and 3B nominating commissions, said anybody who thinks lawyers run those commissions is mistaken.
“It’s very disappointing to me,” said Boyd, former Iowa Judicial Branch court administrator. “It’s a solution in search of a problem. Nobody has been able to articulate a problem with the system. It seems to be based on a few who are upset by certain court decisions. There is already half (commission) appointed by a partisan.”
Senior Justice Zager and others noted that Iowa consistently has a high ranking in the U.S. Chamber of Commerce’s annual survey of state courts for “fairness and reasonableness.”
The 2017 survey ranked Iowa 13th overall, ninth for trial judges’ impartiality and 11th for quality of appellate review. Eighty-five percent of the respondents said a state’s litigation system is likely to impact their business decisions.