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Senate Republicans Advance Proposed Changes To Judge Selection

Julian Garrett
John Pemble
Sen. Julian Garrett (R-Indianola) chairs a subcommittee meeting on judicial nomination changes Wednesday, Feb. 6, 2019.

Senate Republicans advanced a proposal out of a committee Monday that would change the make-up of the judicial nominating commissions that recommend potential judges to the governor.

The bill would allow the governor and statehouse leaders from the same political party to appoint three-fourths of the members of each commission, and statehouse leaders from the other party would appoint the remaining fourth.

“Under this proposal, everyone involved in establishing the commissions has accountability to the voters,” Sen. Julian Garrett (R-Indianola) said.

Currently, half of each commission’s members are attorneys elected by other attorneys. Under the current system, Iowans have the opportunity to retain or vote out judges in regular election years.

Garrett also said this system will produce judges who “will follow the constitution.”

“We have had judges who are too inclined to substitute their own opinions as to what the law should be, rather than taking it as written by the people that drafted the constitution,” Garrett said. “And that has always concerned me.”

Sen. Rob Hogg (D-Cedar Rapids) pushed Garrett to name justices, judges or judicial nominating commission members he thinks are causing problems in the system. Garrett did not provide his opinions. Hogg said if Garrett can’t identify “bad judges,” then his argument doesn’t work.

“I think your real complaint is you don’t like the way that people who were appointed by Democratic governors vote,” Hogg said. “I think you’re trying to come up with a system to pack the court with people who in this moment in time ideologically agree with you.”

Hogg said it’s unfair to Iowans, who ratified the current merit-based system by voting on a 1962 constitutional amendment.

Gov. Kim Reynolds, who supports the proposal, has also been asked several times if she sees problems with the names sent to her by judicial nominating commissions.

“Well I didn’t drive [the proposal],” Reynolds said during a news conference. “So that’s not the case.”

On Tuesday, Reynolds added she saw highly-qualified women who applied for Iowa Supreme Court vacancies under former Gov. Terry Branstad not advanced as nominees by the commission. She said the commission may have rejected them because the women had “a little bit more of a conservative judicial philosophy,” and that move demonstrated “lawyer politics.”

The bill removes the requirement that her appointments to judicial nominating commissions are subject to Senate confirmation.

Several Republican leaders have said this has nothing to do with disagreeing with opinions handed down by the courts. But in early January, Senate Republican Leader Jack Whitver accused the Iowa Supreme Court of “judicial activism” when discussing his support for changes to the judicial selection system.

“It’s just a matter of the accumulation of dozens and dozens of activist rulings from the Court, and trying to curb some of that,” Whitver said.

Republican leaders in the House of Representatives have said Court rulings have nothing to do with the effort to change the judicial selection system.

House Speaker Linda Upmeyer said Thursday the proposal will allow for more checks and balances in that the executive and legislative branches would have a needed check on the judicial branch.

“That’s really what we’re trying to accomplish—is having just a little more transparent, more accountable kind of system that’s still merit-based,” Upmeyer said.

Senate Minority Leader Janet Petersen (D-Des Moines) said Monday this proposal would get rid of checks and balances.

“This is wrong. This is a power grab of the courts,” Petersen said. “And I don’t care who’s in the governor’s office. We have a separation of branches of government for a reason.”

Last Wednesday, Republicans in the Iowa House and Senate had advanced the proposal out of subcommittees, over the first legislative hurdle.

Chuck Hurley with conservative Christian group The Family Leader told lawmakers he supports the changes because of Iowa’s so-called “activist judges.”

“With rulings against law enforcement, a ruling, quote, finding, unquote, an evolving standard and a right to abortion, and a ruling redefining marriage, all in direct defiance of your duly passed laws,” Hurley said.

Supporters of the bill say the courts are already political, and this won’t inject politics into the process.

Jim Carney with the Iowa State Bar Association said political influence in the current system is minimal.

“This bill will hyper-infuse politics more into that,” Carney said. “It will mainline politics into it.”

Carney added the state nominating commission, which recommends appeals court judges and supreme court justices, and almost all of the district nominating commissions in the state already have a Republican majority.

Ben Kieffer is the host of IPR's River to River