What Drake Law professors/administrators think about changes to judicial selection system

Iowa’s non-political, merit-based process for selecting judges works remarkably well, as is evidenced by the judges it produces.

As a group, Iowa judges are hardworking, smart and fair. Citizens can go into any courtroom across the state and be confident that they will receive an unbiased and careful hearing.

But now some Republican legislators threaten to politicize the process and erode the quality of our judiciary by changing the way judicial nominating commission members are selected.

At present, public members are named by the governor and lawyer members are elected by their peers. The Republicans want a political spoils system where the members are appointed by the governor and the political leaders of the House and Senate, with no requirement that members be balanced in terms of political party.

The chairman of the House Judiciary Committee, Rep. Steve Holt, R-Denison, recently set forth his rationale for politicizing the process in a column for the Missouri Valley Times-News. He writes it is to counter “judicial activism.”

“Republicans believe that judges are constitutionally obligated to interpret the law as written, as opposed to predisposing an outcome and then crafting a path to achieve a desired result,” he writes.

This argument is made of straw. We don’t know of a single judge, lawyer or law professor who doesn’t believe “that judges are constitutionally obligated to interpret the law as written.” Or one who believes judges should determine an outcome and then craft a path to achieve the desired result. In our experience, those who accuse judges of being judicial activists very often simply disagree with the judge’s rulings.

Much of what our judges do is the necessary and often difficult work of presiding over the routine but important matters that make up the great majority of cases. Even those few cases which cause public controversy do not fit the judicial activist claim, because it fundamentally misrepresents what judges do. Judges do not control the cases which come before them, and they are bound in deciding cases by constitutional and statutory rules.

For example, public controversy arises when a party argues that a statute violates the equal protection guarantee of the Iowa Constitution that the government cannot discriminate against a class of citizens without a constitutionally sufficient reason. And if the Legislature and governor make such a law without a sufficient reason, it is the duty of the Supreme Court to declare the law unconstitutional and of no effect.

When such a challenge comes before the Iowa Supreme Court, it hears arguments as to whether the Legislature and governor had a constitutionally sufficient reason to discriminate against the class of citizens. In the end, having carefully considered all the arguments, the court determines whether the constitution permits the discrimination. To characterize this as “predisposing an outcome and then crafting a path to achieve a desired result” or “legislating from the bench” is a gross misrepresentation.

The chairman revealingly asserted in his Missouri Valley Time-News column that the judicial selection process “should provide nominees that reflect a governor’s judicial philosophy ...” — a political standard. To do this, Holt would make the selection of the lawyer members of the nominating commissions a matter of partisan politics. We disagree. We believe our judicial selection process should continue to provide nominees to the governor who are selected based on their qualifications and not their politics.

Our state has been well-served by the current system; we have judges who are hardworking, smart and fair. The proposal to politicize the judicial selection process should be rejected.

Drake Law Faculty and Administrators
Allan W. Vestal, Andrew Jurs, Miguel Schor, Matthew Dore, Laurie Dore, Mark Kende, Jonathan Rosenbloom, Cathy Mansfield, Neil Hamilton, Sally Frank, David McCord, Erin Lee Schneider, Jennie Zwagerman, Andrea Charlow, Steve Foritano, Chip Lowe, Bob Rigg, Brent Pattison, Jerry Anderson, Mark W. Bennett, Russ Lovell, and Bob Oberbillig are faculty and lawyer-administrators at the Drake University School of Law.