There’s judicial activism you like – and dislike

One of the most contentious issues in the Iowa Legislature this year involved the way the state’s judges are chosen.

That process was established 57 years ago when voters amended the Iowa Constitution. It’s worth noting that Republicans held solid majorities then in the Iowa House and Iowa Senate.

In the years that followed – when governors were Republicans, as well as when they were Democrats – the stature of the Iowa judiciary was saluted across the United States for its fairness and nonpartisan nature.

But this year, the Republican majorities in the House and Senate came to Des Moines in January intent on changing that process, although neither the governor nor lawmakers bothered to campaign on this ahead of the 2018 election.

One of my friends observed that picking judges is not the sort of thing that regularly goes in and out of fashion like hairstyles do. At least it shouldn’t be.

But Republicans in the Legislature and our governor would have us believe the judicial nominating commissions were stacking the deck with finalists for district court judgeships, for Court of Appeals judges and for Supreme Court justices and were finding lawyers who ignore the Iowa Constitution and disregard court precedents when deciding cases.

Those critics seem to ignore that every governor gets to decide which finalists receive the coveted appointment to the judiciary.

Critics also seem to be oblivious of the reality that supposed “activist judges” make decisions that sometimes disappoint liberals and that disappoint conservatives at other times.

Some recent Iowa Supreme Court decisions illustrate my point that the court is far from a rubberstamp for liberalism or activist government.

Whether at the state level or at the federal level, “activist judges” usually are those who issue decisions you dislike, while those judges who reach a conclusion you agree with are merely faithfully interpreting the Constitution. (See Al Gore for a more detailed explanation.)

In March, the Iowa Supreme Court ruled that the state’s ban on Medicaid paying for medically necessary transgender surgery violates the gender identity protections contained in Iowa’s civil rights act.

It was a unanimous decision, one written by Justice Susan Christensen, who was appointed by Gov. Kim Reynolds.

Christensen was joined by two other conservative justices, Thomas Waterman and Edward Mansfield, both of whom were appointed by Gov. Terry Branstad. Also joining the decision were Chief Justice Mark Cady (another Branstad appointee) and justices Brent Appel and David Wiggins (both appointed by Gov. Tom Vilsack, a Democrat).

The seventh justice, Christopher McDonald, a Reynolds appointee, did not participate in the case because he was not on the court when it was argued before the justices.

Another legal hot potato that came before the Supreme Court grew out of the Dakota Access pipeline project – a project roundly criticized by environmentalists and affected land owners.

In May, the justices affirmed that the Iowa Utilities Board acted properly in approving the pipeline and in allowing the company to use eminent domain law to buy land for the project.

The case was decided on a 4-3 vote, with two of the dissenting justices agreeing in part with the court’s ruling and disagreeing in part.

Later in May, another controversial decision was handed down in cases challenging the significant changes the Legislature made to the state’s collective bargaining law for government employees. The changes included limiting negotiations to wages – a limitation the Legislature chose not apply to law enforcement officers.

State labor leaders were incensed by the Legislature’s actions. But the court decided 4-3 that lawmakers acted properly. The three dissenters concurred in part with that decision.

If Iowa Republicans are truly concerned about driving activism out of our courts, then they should investigate the recent report by longtime journalist Michael Gartner that the changes lawmakers made in the judicial selection process were “an unconscionable coup against Chief Justice Mark Cady and an unseemly power grab by Justice Tom Waterman.”

Gartner wrote in his “Civic Skinny” column in Cityview, a monthly Des Moines news and entertainment magazine, “The whole thing raises questions of constitutionality, civility and judicial conduct.”

The legislative changes, which Reynolds signed into law, cut the term of the chief justice from eight years to two. Cady’s term as chief was scheduled to end in 2024, but it now will end in 2021. It’s probably just a coincidence that Cady wrote the court’s marriage equality decision.

Gartner reported that Waterman has told friends in Davenport, where he lives, that he wants to be chief justice and has the four votes lined up that he needs.

Some Republican lawmakers were opposing changes in the judicial selection process. But that changed in the final days of the 2019 session, and only one GOP lawmaker decided not to support the legislation.

Gartner wrote: “The switches came after top conservatives – apparently including Justice Waterman – made some highly unusual calls to legislators saying the Republicans on the Supreme Court wanted that bill passed.

“Some lawyers … say that if Waterman or any other justice called or met with legislators or the governor’s office about the bill, they may well have violated the Code of Judicial Conduct of the state,” Gartner wrote.

With Gartner’s spotlight on the behind-the-scenes maneuvers, the question now is whether Iowa Republicans are really concerned about judicial activism. Or is the troubling variety of judicial activism only when the court reaches a decision Republicans don’t agree with?

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Randy Evans is executive director of the Iowa Freedom of Information Council and retired opinion editor at the Des Moines Register. He is a native of Bloomfield, Iowa, and now lives in Des Moines. He can be reached at

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