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November 21st, 2010

2012 and Judges

By Nathan Tucker

Though the 2010 midterm elections are barely in the rearview mirror, the campaign to win the Republican presidential nomination in 2012 has already begun.  Newt Gingrich became the first potential candidate to stop in Iowa since Election Day when he made several appearances in the state as a part of a book singing tour.  Sarah Palin will also be making two book signing appearances in Iowa this month, and Mike Huckabee will headline a fundraiser Sunday for the Iowa Family Policy Center.

In the aftermath of the Iowa Supreme Court’s decision last year legalizing same-sex marriage and the subsequent removal of three of its justices by Iowa voters on Nov. 2nd, 2012 presidential hopefuls are learning fast that they had better come prepared to explain to Iowans their view of the proper role of judges.

For instance, Newt recently urged the four remaining justices to step down and advised the judicial nominating commission to refrain from picking radical judges.  Mike Huckabee, in a telephone interview with WHO Radio’s Steve Deace on Tuesday night, argued that courts may not have the last word if the other two branches of government disagreed.  Former Pennsylvania Senator Rick Santorum made stops with the Anti-Retention Judge Bus the week before Election Day, and Minnesota Governor Tim Pawlenty also urged Iowans to vote against retaining the justices.

Two potential 2012 hopefuls have not yet made any public statements on Iowa’s ongoing struggle with its activist Supreme Court—New Jersey Governor Chris Christie and Indiana Governor Mitch Daniels.  Christie, who appeared at a fundraiser for Terry Branstad in October, made judicial issues part of his gubernatorial campaign in 2009.

Despite intense pressure to reappoint a judicial activist to the New Jersey Supreme Court, Christie stood his ground and instead nominated an originalist to the high court.  New Jersey and Maine are the only two states with a judicial selection process that mirrors the federal model of executive appointment subject to senate approval.

Mitch Daniels, who recently called for a truce on social issues and didn’t bat an eye at the reach of the federal stimulus plan, has shown little regard for judicial reform or originalist judges.  Large majorities of the Indiana General Assembly passed legislation in 2009 that would have replaced the “merit based” judicial selection system in place in St. Joseph County.  Governor Daniels vetoed the legislation with the following statement:

The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years.  It is a model to be emulated, not discarded.  It is not broken; it requires no repair.  It has produced outstanding jurists and contains sufficient measures of public accountability.  I believe it is neither necessary nor wise to re-politicize the courts of St. Joseph County.

Recently, Indiana’s judicial nominating commission sent Daniels three names to fill a vacancy on the state’s Supreme Court.  One of the three names was Judge Robyn Moberly, who sounded very much like President Obama when she argued for judicially imposed “compassionate justice.”  She stated that she would make a good judge because “I bring a whole different set of life experiences to the court…I think that’s what makes really great decisions.  Through collaboration, discussion and debate, different life experiences come together and inform us all on what the best decision is.”

Governor Daniels passed over Moberly to pick Judge Steven David, who served a chief defense counsel for terrorist detainees being held at Guantanamo Bay prison.  While on the bench, David ruled that a defendant who had been convicted and twice sentenced to death for killing a police officer could not be executed due to long delays in his case.

David is also a member of the American Judicature Society, an Iowa-based organization that supports commission-based judicial selection.  Since 2000, the AJS has received more than $1 million dollars from George Soro’s Open Society Institute to fund its efforts which, recently, included defending Iowa’s Supreme Court justices.

If Mitch Daniels wants to be president, he will have his hands full trying to explain to Iowa voters in the months ahead why he not only praised the Missouri Plan, but appointed an activist judge like David to his state’s highest court.

But even if Daniels had worked to replace the Missouri Plan and pledged to appoint originalists to the bench, the names forwarded to him by the commission amply illustrate the flaws in the commission system.  An unelected, unaccountable commission can decide to forward only activist applicants to the governor, forcing him to attempt to pick the lesser of two (or three) evils.

No amount of tinkering with the system or changing the makeup of the commissions can solve the greatest discrepancy in the Missouri Plan—the gatekeeper role of a handful of commissioners who are responsible to no one for their decisions.  Unlike the federal model, the buck can never stop with a governor who will always be able to blame the commission for a list of applicants he must choose from.

The only solution is a state constitutional amendment that, by scrapping the entire Missouri Plan and replacing it with the federal system, would place the process in the hands of those directly accountable to the people.  Anything less is window-dressing.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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