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June 20th, 2010

Amending the Judicial Appointment Process

By Nathan Tucker

In the final primary debate among Republican gubernatorial hopefuls, two of the candidates, both of which went on to lose the election, declared that they would impose a litmus test on judicial nominees.  For that they were called naïve by the ultimately victorious GOP candidate because, under the current system, the governor has little choice over who he can nominate.

After one-hundred and five years of selecting judges by elections, Iowa adopted the so-called “Missouri Plan” or merit-based plan in 1962.  Under this system, judicial vacancies are publicized and any qualified individual may apply.

These applicants are then “screened” by nominating committees who are made up of both attorneys and non-attorneys.  The attorneys serving on the nominating commission are elected by their fellow attorneys, and the non-attorneys are appointed by the governor and confirmed by the Iowa Senate.

These committees are supposed to pick the two (or, in the case of appellate courts, three) most qualified candidates and forward their names to the governor, who then selects one of them to fill the vacancy.  If the governor refuses to select one of the candidates, the selection then falls to the Chief Justice of the Iowa Supreme Court.

The current system does not allow a governor to tell the nominating commission to start the selection process over again when the individuals they forwarded to him fail his litmus test.  When confronted with this after the final debate, Bob Vander Plaats, one of the two candidates who said he would only appoint judges who opposed homosexual marriage and abortion, stated that he would address this issue when it arose.

But the time to address this issue is now, before the issue ever arises.  Rather than ducking this question, Vander Plaats should have responded that, in this age of judicial activism, the judicial selection process should be amended to reflect the need to ensure that judicial appointees would follow the law as it was originally understood rather than be guided by their own ideology.

Judicial activism is not confined to federal courts but has, in fact, found a home in many state courts.  For instance, while six state supreme courts and one state trial court have held their states’ bans on same-sex marriage to be unconstitutional, not one federal court has ever reached the same conclusion.  The same ideologically-driven judicial philosophy has become widely accepted by a growing number of judges, regardless of whether they sit on the state or federal bench.

Judicial elections are hardly a solution to this problem because of their tendency to make those entrusted with the task of being impartial judges dependent upon big-money donors and ideological voting blocks.  Rather, states such as Iowa who have the Missouri Plan should replace it in favor of the federal appointment process in which the president has complete discretion to choose his nominee who is then subject to confirmation by the Senate.

While this process would continue the Missouri Plan’s tradition of avoiding the conflict of interest inherent in judicial elections, it would bring the Missouri Plan’s “merit based” process out into the open.  Instead of closed-door nominating commissions who are far too often dominated by the liberal state bar association, representatives directly responsible to the electorate would have the very public task of vetting nominees in open committee hearings.

In addition to merit, the president is free to nominate, and the senate free to confirm, those individuals who satisfy their judicial litmus test.  Some may object that, despite the federal nominating process, liberal judges have continued to find their way onto the bench.  But that is not the fault of the system, but of senators who have too often failed to filibuster, or even threaten to filibuster, an activist nominee.  At least, unlike the Missouri Plan, the federal selection process allows for a public debate over a particular nominee’s judicial philosophy even if such a debate shamefully never occurs.

Obviously this change will not necessarily, in and of itself, cure judicial activism.  However, rather than trying to solve the problem of judicial activism after it occurs, it is easier to solve it beforehand by weeding out potential judicial nominees with activist tendencies.  This is something that the Missouri Plan—a closed door, unaccountable process too often dominated by fellow ideological activists—can never accomplish.

This change can only come about by a constitutional amendment, and Iowans should push for this amendment, in addition to a marriage amendment, to pass out of either the statehouse or a constitutional convention.

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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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