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September 9th, 2010

A Conservative’s View of the Justice Sandra Day O’Connor Event

By William C. Brown

I attended Wednesday’s forum sponsored by the Iowa State Bar Association at which former U.S. Supreme Court Justice Sandra Day O’Connor spoke. Justice O’Connor is spearheading an effort to eliminate judicial elections where they still exist and to retain merit selection procedures such as those used in Iowa in places where they are used. Justice O’Connor was introduced by the Chief Justice of the Iowa Supreme Court, Marsha Ternus, who is up for a judicial retention vote this November. Also on the panel were Mike Petro of the Committee for Economic Development (CED), a Washington think tank that helped to sponsor and pay for the event, Janice Laue of the Iowa AFL-CIO, and Dean Allan Vestal of the Drake University Law School.

The public was not invited to the event and, because of great demand, attendance was capped and many people were turned away. Most of the attendees were members of the Iowa State Bar Association, but there were several business types who appear to have been invited by the Greater Des Moines Community Foundation, since Barry Griswell, former CEO of Principal Financial Group and current President of the Foundation, was the moderator for the event. There were a few members of the media present, but no cameras were evident at the forum. It appears that a news conference was held in an adjacent room either before or after the event.

Generally the event can best be summarized as a rally in favor of Iowa’s judicial selection process based upon the Missouri plan. Kudos were issued to a group founded by key Iowa State Bar Association members – Iowans for Fair and Impartial Courts – which has as its mission advocating for retention of Iowa’s current judicial selection process.

Interestingly, Justice O’Connor confined her comments to the advisability of retaining a merit based judicial selection process and did not weigh in on the current judicial retention process, other than a fleeting reference to the existence of this issue on the ballot. She did, however, acknowledge that even though she believed Iowa’s merit based selection process is a good process, that was not to say that the process could not be improved upon. The CED and AFL-CIO panel members likewise confined their remarks to the advantages of a merit based selection process and the evils of judicial elections generally. Dean Allan Vestal, however, was a different story.

Dean Vestal went into a five point diatribe about why Iowa’s judicial retention votes should not be used as a referendum on a particular court decision and that the only justifiable basis for a vote against retention was either incompetence or malfeasance. Dean Vestal, however, failed to note that Iowa has extensive provisions for the removal of judges in Chapter 602 of the Iowa Code for these reasons and that the constitutional provision regarding judicial retention votes contains no such limitation. Effectively, Dean Vestal was arguing for a position that judges should in no way be accountable to the electorate for their decisions or their judicial philosophy.

Iowa’s process for selecting judges is found in Article V, Sections 15 through 17 of the Iowa Constitution. Iowa’s system establishes a judicial nominating commission, in which up to eight members are appointed by the governor and an equal number of members are elected by the members of the bar of the state. In addition to these members, the senior justice of the Iowa Supreme Court other than the Chief Justice serves on the commission as its chair. Since the members of the bar are likely to elect only lawyers to serve on the commission and since the senior Supreme Court justice will be a lawyer, the composition of the commission virtually assures that the appointment process will be controlled by lawyers rather than members of the public at large. While commission members are elected and appointed without regard to political affiliation, as Nathan Tucker has pointed out the makeup of the commission is heavily weighted in favor of Democrats.

The commission then makes recommendations for judicial appointments by the governor – two nominees for lower courts and three nominees for the Supreme Court. The governor is then to fill vacancies in the courts from amongst these nominees and, if the governor fails to do so the chief justice of the Supreme Court does so from such list of nominees.

Judicial retention elections are then held periodically based upon the term of office of the judge – six years for district court judges and eight years for Supreme Court justices. This is really the only time the electorate has any chance of weighing in on judicial appointments, since judicial selection is unlikely to be much of an issue of importance in voting preferences for a governor. There is nothing in the constitutional provision setting forth any criteria for voting yes or no on judicial retention, despite Dean Vestal’s arguments concerning the “intent” of the judicial retention elections.

Consider this prospect – what if all three Supreme Court justices on the judicial retention ballot this year are voted out of office? What happens then if the judicial nominating commission then submits the names of the three former Supreme Court justices to the governor as its nominees for all three vacancies so created by the judicial retention election? The governor could effectively be forced to appoint the same people to the Supreme Court who were just voted out of office. Moreover, failing to fill these vacancies is not a viable option for the Governor since then the Chief Justice of the Supreme Court appoints the justices from the very same list of nominees. Sound far fetched? Certainly stranger things than this have happened in our republic. Remember Franklin Roosevelt’s court packing plan?

It is really disheartening as a member of the Iowa bar to see the bar go so far in the tank for protecting its own on the Supreme Court. I have little doubt that the supporters of Iowans for Fair and Impartial Courts share Dean Vestal’s views on the permissible bases for voting a judge out of office. It is amazing to me how disengenous people can be about justifying their positions and in asserting that their position is “fair and impartial” and apolitical. Hogwash. As Nathan Tucker’s articles have pointed out, the process in inherently political and in my opinion it is not a bad thing that it is so – after all, it is a vote of the electorate.

Because of the extreme difficulty of amending the constitution, the only check on judicial decisions which the electorate as a practical matter has is in the judicial retention vote, and that check is very limited since it applies only after the fact.

I am not among those who work to seek removal of the Supreme Court justices just because of their decision in Varnum. Nor do I seek a return to judicial elections in lieu of a merit based selection system. Frankly, I have heard no one advocating this, so it is curious that this event was billed as a defense of the current merit based system that no one appears to be urging us to jettison. However, for me judicial philosophy and a judge’s approach to constitutional jurisprudence are at the heart of the judicial retention decision posed to the electorate since removal for incompetence and malfeasance are already adequately addressed in Iowa Code Chapter 602.

I have not yet decided how I will personally vote on the upcoming judicial retention election. However, I’m sure not going to limit my vote solely to a consideration of whether a judge is competent or ethical – the vast majority of judges are. To limit my vote as urged by Dean Vestal would be to completely throw away my franchise and assure that judges are totally unaccountable to the electorate.

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The Iowa Republican

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