Iowa GOP’s war on courts could result in partisan judges

Starting from the days of Brown v. Board of Education, through Roe v. Wade and up to a federal judge overruling Proposition 8 in California last month, many conservatives have viewed the courts with contempt. The term “judicial activism” is often thrown around, usually meant to convey some variation on the idea that a judge implemented progressive policy against the will of citizens (though in a post-Citizens United world some liberals have taken to using the rhetoric of overreaching court decisions).

The Iowa Supreme Court building in Des Moines.

While this discussion raged at the national level, it largely bypassed Iowa courts, which through their merit nomination system, were generally viewed as less partisan. That changed with the state Supreme Court’s decision on the Varnum v. Brien case in 2009. In a unanimous decision, the court struck down Iowa’s Defense of Marriage Act, clearing the way for same-sex marriage.

Since that ruling, state Republicans have bemoaned not just the change in marriage laws, but also the structure of the court itself. With Terry Branstad leading in all polls and favored to retake the governor’s office for Republicans this fall, proposals to reshape the court nomination process could have a lasting impact on Iowa’s judicial system.

During a radio interview last month, Branstad laid out his concerns over the current system used to select Iowa judges.

“I think the system is flawed,” he said told Jan Mickelson on WHO-AM. “That’s the frustrating thing as governor. You only get to choose from the three that are nominated for the Supreme Court or District Court from two. It’s not like the president. The president just chose a justice for the U.S. Supreme Court that has never tried a case. Yet the governor has to choose from the three or the two that are nominated by the nominating commission. I believe that needs to be changed so you can indeed choose people who have a commitment to protect the constitution and to judicial restraint.”

Branstad elaborated that he would like to see the federal model employed in Iowa, allowing the governor to select Supreme Court Justices subject only to confirmation in the state Senate. (Branstad’s campaign did not return phone calls and e-mails for this article seeking further details on his proposal or views on the judicial system)

Since 1962, Iowa’s judges have been placed on the bench through a process known as the “Missouri Plan.” Under this system, there is a nominating commission compromised of 15 individuals: 7 members nominated by the state legal bar, 7 selected by the governor subject to Senate confirmation, with the last spot filled by the most senior Supreme Court justice who is not the chief justice.

When a seat on the court is open, the commission vets potential nominees and presents the governor with a list of three names from which he or she can select one name. The governor essentially must choose from this list of names. If the governor chooses to not select one of the candidates provided, the committee is then free to select the justice without consulting the governor. This commission handles nominations for not just the Supreme Court, but also the Court of Appeals and the Circuit Courts.

Over the last five decades, the Missouri Plan has been viewed as largely successful in Iowa. Though it is impossible to fully remove politics from any equation, the system has reassured citizens that their judges are operating in a nonpartisan atmosphere. Legal experts worry that placing more direct control in the governor’s office would infuse the court with political ideology, something the Missouri Plan has largely negated so far.

“What would be lost [under Branstad's proposal] is the fact that you then have a process that is more politicized. Inevitably then when you elect governors, you’re not just electing governors, but your in a sense coming close to starting to elect the judiciary,” said Mark Kende, the James Madison Chair in constitutional law at Drake University Law School. “And once you start to come close to electing the judiciary you lose some of the nonpolitical and nonpartisan aspects of the Iowa process.”

Under the current system, the governor has some involvement with the nomination through selecting seven members of the commission. But commission members serve staggered terms, making it difficult for any one governor to gain much control of the process.

“The governor now has some influence, and certainly it would be naive to think otherwise,” Kende said. “But it is equally clear that the proposal from Gov. Branstad would increase that influence significantly and remove Iowa from a position of being a place where the process is relatively depoliticized and traditionally had been. That would be a loss, I think, to the Iowa public.”

Bob Vander Plaats (photo by Dave Davidson, www.TEApublican.com)

Though the party’s base has clearly influenced Branstad’s views on the courts, the former governor has not moved as far to the right as many Republicans would like. Bob Vander Plaats — Branstad’s primary opponent who ran on the legally implausible idea of overturning the Varnum decision through executive order — launched a high profile campaign to unseat the three Supreme Court justices up for retention votes this fall. Even some of the out-of-state politicians viewing potential 2012 presidential runs have weighed in, supporting the effort to oust the justices. Yet in spite of the popularity of Vander Plaats’ campaign among conservatives, so far Branstad has refrained from joining the effort.

“It’s something that Branstad is tiptoeing around,” says Dennis Goldford, a professor of political science at Drake University. “He doesn’t want to inflame the people for whom this is a driving issue, but its not really something he’s comfortable talking about. His big focus is business and economic development.”

Advocates for the current court system have organized against Vander Plaats’ efforts. One recently formed organization, Iowans for Fair and Impartial Courts, was not created as a direct counterpoint to Vander Plaats’ Iowans for Freedom, but the two campaigns essentially serve as opposing teams. The group was formed by lawyers from across the political spectrum, ranging from former Iowa Democratic Party chair Scott Brennan to Steve Roberts, a former Republican National Committee member.

“I think there should be an appointment system that allows for making sure that they are qualified, but I think there’s no question that the system still works work,” Roberts said. “It would be bad precedent, even if one is opposed to some of the decisions to get into a situation where you’re voting them out on … how they decide cases.”

Only four justices have lost retention votes since Iowa implemented the Missouri plan, and each for idiosyncratic reasons rather than as a response to a specific ruling. But there has also never been a concerted effort to oust a judge to the level that Vander Plaats has undertaken.

Judge Jeffrey Neary faced the only contentious retention election during the past decade in 2004 after he divorced a lesbian couple who had a civil union in Vermont. The conservative backlash against Neary was an order of magnitude below Vander Plaats’ effort, both in terms of money and public attention, and Neary went on to retain his seat with 59 percent of the vote. If Vander Plaats’ campaign proves successful where Neary’s opponents failed, with one or more of the three Supreme Court Justices losing their retention vote, the landscape of future judicial elections could be completely reshaped.

“If they’re successful, I think the judges will say to themselves, ‘gosh, next time there’s a retention election, I’m going to need to mount a campaign on my behalf to keep my office. That means I’ve got to go out and solicit donations’ and when they start doing that, that has a corrosive effect on people’s faith on their ability to be fair and impartial,” says Norbert Kaut, one of the founders of Iowans for Fair and Impartial Courts.

With the lack of attention paid to past retention votes, Iowa justices have generally not engaged in any form of campaigning to maintain their seats. But in states that do hold elections for their Supreme Court justices, campaign spending has exploded over the last decade. According to a recent study produced by the Brennan Center for Justice, $207 million was spent by Supreme Court campaigns nationwide during the last 10 years, more than double the amount spent during the 1990s.

Though Iowans for Fair and Impartial Courts is focused on informing the public about the upcoming retention votes, the group also supports the current nomination system.

“The Iowa merit selection system has been time tested and has worked very, very well for many, many years, and has resulted in a judiciary that by and large the regular people of the state of Iowa see as fair and impartial,” Kaut said. The organization has an event planned for early next month where former U.S. Supreme Court Justice Sandra Day O’Connor will take part in a panel discussion on the benefits of a merit-based system.

Branstad’s proposal to change the nomination process may boost his standing with the conservative base, but actually going through with those changes won’t be so easy. The nominating commissions are codified in the Iowa Constitution, and as opponents of same-sex marriage already know, amending the constitution is a long and arduous process. A majority in both houses of the state legislature must approve the proposed amendment in not just one, but two consecutive sessions. Only after that point is an amendment placed on the ballot, where it must receive a majority of the popular vote to change the constitution.

Even if Branstad wins in November and manages to convince the legislature to pass an amendment during two General Assemblies, the earliest date a change to the nomination process could appear on the ballot would be the 2014 general election.

Beyond the logistics of passing a new amendment, there are complicated political dynamics in changing the structure of the judicial system that make it unlikely for Branstad to take nomination reform up early in his term. If measures to change the process were introduced in the next few years, many people would view the proposal as a direct response to the Varnum decision. While that would satisfy those opposed to the ruling, it would equally inspire supporters of same-sex marriage. Rather than being presented as a technocratic change, reforms to the system would become intertwined with the larger social debate, killing any possibilities for the bipartisan support required to pass an amendment.

“If Branstad gets in, if he starts by focusing on economic issues, gets those under control and starts working on this, and has maybe a commission of experts of some sort, including legislators, and they propose this and they somehow show that this works better, [creates] greater accountability, than it may have a chance once the general issues have died down in terms of the actual political issues that surround this,” said Tim Hagle, a professor of political science at the University of Iowa.

Patrick Caldwell covers Iowa for The American Independent.