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December 17th, 2010

Change We Can Believe In

By Nathan Tucker

In the weeks following the removal of three Supreme Court justices by Iowa votes on Election Day, numerous suggestions have been made about how the process of selecting judges could be improved.  While some have merit, all of them would unfortunately fail to produce real change in the process that we can believe in.

Stephen Zack, president of the American Bar Association (ABA), acknowledged in a guest op-ed for the Des Moines Register that Iowa’s system is “not ideal.”  The problem for Zack, however, was not that the current system is dominated by liberals which produce judges who believe in a living constitution.

Rather, Zack worries that the current eight-year terms for Iowa’s Supreme Court justices are too short, making it harder for them to “concentrate on the job at hand rather than a looming election.”  Instead of eight-year terms, Zack notes that the ABA “recommends 15 year” terms.  Both Zack and, in a separate article, the California chief justice suggest a single term of fifteen years or until a mandatory retirement age is reached.

This “solution” does nothing to solve the problem of judicial activism, but only intentionally protects the judges doing the activism from any kind of censure.  Being removed from any form of accountability, Iowa judges would be free to proclaim without fear such activist truisms as “citizen’s right are [not] constrained to those previously recognized,” and that the “Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure.”

Both Iowa Court of Appeals Judge Mary Tabor and the Des Moines Register opined that Iowa’s current selection process should be made more open.  They suggest releasing the names of applicants and opening commission proceedings to the public.  Under current law, the commissions may meet privately, keep the names of applicants (even the finalists forwarded to the governor) confidential, and refuse to accept comments from the public.

But while making the process more transparent is an improvement, it does nothing to ensure that the commissioners will engage applicants in a discussion about their judicial ideology.  Even if they did undertake such an inquiry, the commissions, dominated by liberal members of the Bar, will continue to forward activist applicants to the governor who has no choice but to pick one to serve on the bench.  Real change that we can believe in has to be more fundamental than simply making the process more public.

A common suggestion by Republicans is that the commissions should be required to be bipartisan with half of their members Republican and half Democrats.  Currently liberals make up an overwhelming majority of those who serve on the judicial nominating commissions.  This solution, however, is prohibited under Section 16 of Article V of the Iowa Constitution which provides, in pertinent part, that:

Appointive and elective members of judicial nominating commissions…shall be chosen without reference to political affiliation…”

Even if such a requirement were constitutional, the process could be easily manipulated by the governor with the acquiescence (or negligence) of the senate.  For instance, out of a total membership of seven on the Iowa Civil Rights Commission of which, by statute, only four can be Democrats, there are three acknowledged Democrats, two others who were until recently registered Democrats but now appear to be nominal Independents, and one Republican turned Independent who is a very generous Democratic donor.

Additionally, the real problem is not one of party affiliation but of judicial philosophy.  This is not a Republican versus Democrat issue, but rather one of constitutionalism versus activism; of the original public understanding of the Constitution versus a “living” Constitution.  Instead of pursuing measures that are not only prohibited by the Constitution but that miss the larger issue, our efforts should be focused on solutions that rid the commissions and courts of activists.

In the end, real change that we can believe in is a constitutional amendment that would place the process in the hands of those elected by and accountable to the people.  Anything less than that is simply 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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