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September 12th, 2010

An Improvement We Desperately Need

By Nathan Tucker

Credit to the Des Moines Register for actually discussing what the Iowa State Bar Association and Iowans for Fair and Impartial Courts have so far avoided—amending the Iowa Constitution to model the judicial selection process after the federal system.  These groups would like voters to think that there are only two possible ways of selecting judges—Iowa’s current use of the Missouri Plan or judicial elections.

But the Register actually had the gumption to mention the third choice, an option advocated by Republican gubernatorial candidate Terry Branstad and others.  In the end, however, the Register was less than impressed with the idea, writing in a recent editorial that such a change would bring the “circus” of federal nomination hearings to the Iowa Capital.

“Far from being an improvement,” the Register opined, “this would assure perennial political battles over selecting judges.  It almost certainly would politicize Iowa’s process:  The governor would feel compelled to play to his or her political base by nominating judges who fit a particular ideological mold; the members of the General Assembly (presumably the Senate) not of the governor’s party would feel obligated to find dirt on nominees; and the nominees themselves would be pigeonholed based on their party affiliations.”

In a recent article in The Iowa Independent, Mark Kende, the James Madison Chair in constitutional law at Drake Law School, agreed, arguing that “what would be lost is the fact that you then have a process that is more politicized.  Inevitably then, when you elect governors, you’re not just electing governors, but you’re in a sense coming close to starting to elect the judiciary.”

While the federal judicial nominating process may bring partisan and ideological differences into the open, the Register is disingenuous in claiming that Iowa’s current system is not already politicized.  The overwhelming number of judges and nominating commission members are Democrats, and this result is repeated in other states who have adopted the Missouri Plan.  The Register has not only refused to discuss this issue, but recently rejected a guest op-ed detailing these statistics.

The Register is right to point out that the federal confirmation hearings have become a “circus.”  Federal judicial nominees, especially for the Supreme Court, are subject to strict scrutiny and can face grueling confirmation battles.  Senators, with increasing frequency, are preventing nominees from making it out of committee or, when they do, threatening to filibuster a full-Senate vote.  And the lucky ones who actually are confirmed have to wait months, if not years, before they can assume their seat on the federal bench.

This is a circus, however, that we need to have.  The process is not so much a circus in which politicians hope to score points, but rather a conflict over the ideological makeup of the federal courts which have far-ranging consequences for the future of our country.  As a result of the political seduction of the law, whoever controls the judiciary controls which policies and “minority rights” will be favored.

As has been previously noted, this is a power struggle over the meaning of the Constitution—either judges are bound by the text and original public understanding of the document, or they are free to be guided by their empathy and sense of justice as they engage in “goal oriented” jurisprudence.

Democrats have long understood that what is at stake is not just abstract ideology but political power—the ability to win in the courts what they can’t at the ballot box.  The statistics show that it is foolish to assume that Democrats will not seek to control the judiciary simply because judges are nominated by “merit-based” commissions.  Sadly, the opposite has occurred as Democrats have been able to gain control of the process without public scrutiny and accountability.

Some conservatives, favoring judicial elections, argue that the federal nominating process doesn’t prevent liberals from assuming the bench, even when a Republican president is in office.  For instance, Justices O’Connor, Kennedy, and Souter were all nominated by Republican presidents but fell far short of conservative expectations.

But those results were not the fault of the process, but of the process not being used.  For far too long Republican politicians did not fully understand what was at stake, or seek to use the process with the same vigor and dedication of the Left.  But presidents and senators alike must apply a constitutional litmus test by seeking a nominee’s views of past precedent to judge his or her adherence to originalism.

Furthermore, the process can be amended to provide additional checks on judicial activism by providing for more frequent retention votes, term limits, and a temporary stay of court decisions.  The federal model, with these modifications, provide the transparency and accountability to the process that the current system desperately lacks, while avoiding the money and special interests too often inherent in judicial elections.

This is the debate we should be having, but obviously the liberals in the Democratic Party, Bar Association, and media have no interest in an honest and open debate that might lead to changes that would erode their influence over a judiciary they currently control behind closed doors.

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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 nathanwt@juno.com.




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