When it comes to selecting judges, Iowa is right to want a system that considers merit. The state also is right to involve lawyers in making selections. But Iowa’s current system isn’t flawless.
The fact is, deciding the "merit" of judicial nominees is not a completely objective endeavor. Well-meaning people often disagree about what, or who, makes a good judge, in large part because there are fundamental disagreements about judicial philosophies. At the national level, this plays out openly where elected leaders strongly disagree—often along party lines—about Supreme Court candidates. But these disagreements aren’t limited to just elected officials. In fact, it’s not uncommon for judges themselves to associate their philosophies with political parties. This is most obvious when a judge or justice might time a retirement so that a preferred party can name a successor. That’s not necessarily wrong. Judges care deeply about their views, so they want their successors to be judges with similar philosophies.
Given the correlation between political affiliations and judicial philosophies, it’s reasonable to question Iowa’s current way of filling nominating commissions. While the political affiliations of governor-appointed commission members unsurprisingly have swung toward the party of the governor (Republican appointees under Republican governors, Democrat appointees under Democrat governors), lawyers over time have elected disproportionately more Democrats than Republicans to serve as lawyer-elected commission members, regardless of whether Iowa has been red or blue.
Put differently, the process appears to silently gerrymander an entire half of the judicial nominating commissions to a group of citizens who have consistently elected far more Democrats than Republicans, by sometimes more than a two to one margin. That essentially stacks half the deck for Democrats (and their judicial philosophy preferences) and leaves the other half open to the party holding Terrace Hill.
But why don’t Republican lawyers just do a better job getting elected to the commissions? It’s not that easy. By sheer numbers, the balance of power in the Bar based on political preference, type of practice and geographic concentrations, appears to tip the scales in favor of candidates who vote Democrat.
Regardless, balancing a purported non-political process shouldn’t require lawyers to campaign harder for roles. And, in any event, the process is so currently hostile to soliciting votes that a highly qualified candidate who recently sent a simple flyer was harshly criticized for "waging an unprecedented campaign" to be on the statewide commission. This attack on sharing information and soliciting involvement was troubling, particularly when it appears that less than 20 percent of eligible lawyers even bothered to vote in the last commission elections—which is striking given the current passion to maintain that right.
These stats and results raise real questions of whether the current process for selecting lawyers is evenhanded, optimal, or working as intended.
In fairness, there may be legitimate reasons to debate whether the new proposed plan is better, but several current attacks on it are wrong.
First, this is not a power grab. The current proposal balances the non-governor appointed half of the nominating commissions equally among Democrats and Republicans. The sitting governor still appoints the other half, regardless of whether she is a Republican or Democrat. Second, the new plan does not eliminate lawyers. Half the members are required to be lawyers, just like it is today. Third, changing how lawyers are selected will not necessarily politicize the process. There is no reason to conclude that lawyers in an appointed capacity will serve any less capably, credibly, or honorably than elected lawyers.
Indeed, governors have, in the past, appointed lawyers to governor-appointed seats on the commissions, and those lawyers have served well. Fourth, a change does not necessarily mean damage to our court’s reputation. Other states follow models with merit commissions filled by elected officials, and some have courts ranked as high, or higher, than ours.
Finally, the new plan doesn’t make the process less credible or less fair. Instead, the proposal seeks to eliminate an election process that seems to deal better hands to some groups and political parties than others. That’s bad in cards. It’s fair to question whether it’s bad in judicial selection.