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September 5th, 2010

Democrats Defending Their Judges

By Nathan Tucker

Recently, Frank Carroll, the President of the Iowa State Bar Association (ISBA), wrote a letter to the Association’s members in which he warned them that “Iowa faces an unprecedented challenge to our tradition of judicial selection and retention this election season.”

He continues that, “while we have benefited from a process since the 1960’s that has previously kept politics and campaign money out of the courts, the announcement by an organization to campaign against three justices…threatens Iowa’s tradition of fair and impartial judges…”

As evidence of “Iowa’s tradition of fair and impartial judges,” Carroll touts the results of a recent U.S. Chamber of Commerce poll which ranked Iowa’s court system 5th in the nation.  But 5th in the nation for what?  For its friendly “litigation environment” for large businesses.

In other words, the poll simply ranked states according to how likely it is that a business would defeat a lawsuit filed by a personal injury attorney.  That is the extent of the ranking; it does not, for instance, study how Iowa courts manage criminal cases, family law disputes, small claims, or civil rights actions.

Noticeably, these defenders of the current system do not go on to inform voters that this same poll found that Iowa ranked 19th for judges’ competence.  Nor do they mention that the Chamber only polled general counsel for companies with at least $100 million in annual revenue, or that the attorneys polled were not required to have even a passing familiarity with Iowa courts.

Nonetheless, Carroll, a registered Democrat, announced that the ISBA is taking two key steps to, in his words, keep politics out of Iowa’s courts.  First, as had been previously announced, the ISBA is hosting a panel discussion on September 8th on which former U.S. Supreme Court Justice Sandra Day O’Connor will sit.  It is not surprising that the retired justice who championed abortion rights, upheld McCain-Feingold campaign finance laws, expanded the gay agenda, and upheld affirmative action would want to insulate the judiciary.

But what is surprising are those who will join her on the panel—Dean Allan Vestal of Drake Law School, Dean Gail Agrawal of Iowa Law School, Barry Griswell of the Des Moines Community Foundation, Mike Petro of the Committee for Economic Development (CED) based in Washington, D.C., and Janice Laue of the Iowa AFL-CIO.

It is unclear what expertise and first-hand knowledge big labor, a Washington economic think-tank, and the Des Moines Community Foundation bring to this subject.  What is clear, however, is the failure of the ISBA to even invite one conservative to serve on a panel that is dominated by liberals. For instance, though Dean Agrawal’s voter registration could not be determined, he has only contributed to Democratic candidates.  Likewise, though Barry Griswell’s voter affiliation could not be confirmed, he has given $10,000 to the Iowa Democratic Party, $2,300 to Tom Vilsack, and $5,600 to Tom Harkin.

Janice Laue, a registered Democrat, has repeatedly given to Democratic causes, including $210 to the Iowa Democratic Party and the Polk County Democrat Central Committee, $100 to Planned Parenthood, and $730 to Democratic candidates.  Dean Vestal is a registered Democrat.  While little could be found on Mike Petro, he is the vice-president of CED, a liberal-leaning think-tank that favors campaign finance restrictions and believes that ObamaCare did not go far enough.

Despite its decidedly partisan makeup, this panel discussion has been advertised as a “public education effort” to raise “awareness about the threat to judicial independence.”  But this event is not open to the public or even attorneys who are not members of the ISBA.  Rather, only Association members and selected “business and community leaders” have been invited to attend, giving the appearance that this is much more of a fundraiser headlined by Justice O’Connor than an educational effort.

Those attending this event will no doubt be encouraged, as they were in Carroll’s letter, to contribute to Iowans for Fair and Impartial Courts (IFIC), the ISBA’s second project intended to address “the threat to judicial independence.”  To add a little extra incentive to giving, IFIC is currently seeking charitable status for its partisan, non-public education effort.

While decrying the efforts of their opponents as partisan, IFIC has the audacity to claim that they are merely educating voters.  TIR has learned that requests are being filed with the IRS to look into this duplicity because, as a 501(c)(3), IRS regulations prohibit IFIC from “participat[ing] in, or intervene[ing] in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

Little information could be found about IFIC; its only registered official is Scott Brennan, a Democrat and former Iowa Democratic Party Chair who has given $100 to Tom Miller, $1,325 to the Iowa Democratic Party, and $750 to Tom Harkin.  Though no formal connections could be found, it has been reported that Norbert Kaut, a Democrat, and Bob Rafferty and Steve Roberts, both Republicans, are affiliated with IFIC.

With such widespread support from the Democratic Party and ISBA, it is hardly surprising that Iowa Chief Justice Marsha Ternus recently announced that she and the other two justices up for retention votes this November will not form their own political action committees.  Chet Culver would also have no need to form his own PAC if the Democratic Party did all his fundraising and campaigning.  Additionally, unlike a political action committee, as a 501(c) organization IFIC has the added benefit of being able to keep its campaign contributors anonymous.

In the midst of all their “public education efforts,” these predominately Democratic guardians of the status quo will almost certainly never mention two particular issues.  First, they will fail to tell voters that they have a vested interest in perpetrating a system that they, not the voters, control.  Though they often claim that Iowa’s judicial selection scheme removes politics from the process, a recent analysis shows the exact opposite is true.  The system is dominated by the very Democrats who are defending it.

This same trend can be found in both Tennessee and Missouri, the state that gave us the “merit-based” Missouri Plan.  In Tennessee, 67 percent of appellate nominees were registered Democrats while only 33 percent were Republicans.  In Missouri, the amount of money contributed by judicial nominees to political candidates was tilted 93 percent for Democrats with only 7 percent for Republicans.

The second thing these Democrats will not tell voters is that it is not an either or choice between “merit selection” by nominating commissions on the one hand and judicial elections plagued by campaign contributions and special interest on the other.  There is also a third method, one in which the chief executive selects a nominee who is then confirmed by the senate.

This would bring the process out into the open and turn it over to those directly answerable to the people while simultaneously preventing the conflict of interest issues that arise in judicial elections.  It would also allow for an examination of a nominee’s judicial philosophy to ensure their fidelity to the original understanding of the Constitution.

Iowa’s partisan “merit selection” scheme must be scrapped and replaced with one modeled after the federal nominating process.  Unfortunately, this can only be accomplished by a constitutional amendment, which is all the more reason to vote for a constitutional convention this fall.

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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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