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July 25th, 2010

Judicial Nominating Commissions – Merit or Partisan?

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Written by: Nathan W. Tucker
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By Nathan Tucker

The answer to that question, gleamed from an analysis of voting and political contribution records, is that the process is completely partisan.  Supporters of Iowa’s judicial nominating system, often referred to as the “Missouri Plan,” claim that it removes politics from the selection process.  The evidence, however, illustrates that the process remains highly partisan, though the Missouri Plan attempts to keep it hidden behind closed doors.

For instance, the only current justice on the Iowa Supreme Court who was not selected by a Democratic governor is Chief Justice Marsha Ternus who, despite currently being a registered Independent, had previously been a registered Democrat.  Of the six remaining justices, none are registered Republicans.  Justices Michael Streit and Daryl Hecht are registered Democrats, and Justice Mark Cady is a registered Independent who had previously registered as a Democrat.

Though formal voter registration was unavailable for Justice David Baker, he gave $250 to Iowans for Vilsack Pederson, Inc. in 2003, and $2,500 to the Iowa Democratic Party.  Justice David Wiggins is ostentatiously registered as an Independent, though not only has he recently been a registered Democrat but he has also donated $4,000 to the Iowa Democratic Party, $2,000 to Democratic Robert Tully’s ’98 campaign for Congress, $1,000 to Tom Harkin’s ’02 reelection campaign, and $2,000 to Democratic John Norris’ ’02 bid for Congress.

Last but not least of the Supreme Court justices is Justice Brent Appel, who is also registered as an Independent despite having previously been a registered Democrat.  He has contributed $14,200 to the Iowa Democratic Party, $2,500 in 2003 to Iowans for Vilsack Pederson, Inc., $3,550 to Tom Harkin’s Senate campaigns, $10,140 to Leonard Boswell Congressional campaigns, $2,000 to Bill Gluba’s ’04 Congressional bid, $2,750 to Bruce Braley’s ’06 campaign for Congress, $2,000 to John Kerry’s ’04 bid for President, and $1,000 for Hillary Clinton’s ’00 campaign for the Senate.

There are only two judges on the Iowa Court of Appeals who were not appointed by a Democratic governor—Judges Rosemary Shaw Sackett and Gayle Nelson Vogel, both of whom, coincidentally, are Republicans.  Of the remaining 7 judges, Judge Edward Mansfield is the sole Republican.  There is one Independent, Judge Anuradha Vaitheswaran, but she had previously been a registered Democrat.

Judges Larry Eisenhauer, Amanda Potterfield, Richard Doyle, David Danilson, and Mary Tabor are all Democrats.  Judge Doyle contributed to Chet Culver’s campaign in the year prior to being appointed to the bench.  Judge Tabor has also contributed several hundred dollars to Democratic candidates.

Things do not improve any at the trial court level.  Of the 83 trial judges appointed since 1999 when Governor Vilsack began his first term, 50 of them are registered Democrats.  Only 16 of the 83 are Republicans.  10 are registered Independents, though 3 of them had been registered Democrats and 2 had been registered Republicans.  Voting information on 7 trial judges could not be determined.  (This list does not include part-time magistrate judges.)

These results do not occur in a vacuum, but rather are the result not only of Democratic governors but of Democratic-dominated nominating commissions.  Under Iowa’s selection scheme, nominating commissions interview applicants for vacant positions and then forward to the governor two (or, in the case of appellate vacancies, three) names from which the governor then selects one to fill the position.  There is a single state nominating commission to review applicants for a position on either the Supreme Court or Court of Appeals, and then each judicial district has its own nominating commission for trial judges.

The state nominating commission is made up of 14 members, 7 selected by the governor (and confirmed by the Senate) and the remaining 7 are attorneys elected by their colleagues.  Of the 7 commission members appointed by Democratic governors, all 7, unsurprisingly, are Democrats.  Of the 7 elected attorneys, only 2 are Republicans and 1 is an Independent.  However, one of the Republicans, H. Daniel Halm, Jr., has contributed like a Democrat–$1,000 to the Iowa Democratic Party, $1,000 to Tom Harkin, $2,400 to Democratic Senate hopeful Roxanne Conlin, and $6,100 to Bruce Braley.

Each of the 4 remaining elected attorney members are Democrats, all of which contributed to Democratic candidates.  For instance, Steven Pace gave $250 to Governor Chet Culver, and Kathryn Walker gave $500 to Congressman Bruce Braley.  Guy Cook gave $1,500 to Culver, $125 to the Iowa Democratic Party, and $1,000 to Roxanne Conlin.  Joseph Fitzgibbons gave $2,350 to Vilsack, $1,000 to Tom Harkin, $1,250 for Nebraska Senator Bill Nelson (Democrat), $4,100 to the Iowa Democratic Party, and $7,500 to Bruce Braley.

The same Democratic domination continues in the district (trial court) nominating commissions, each of which is made up of 10 members—5 appointed by the Governor (and confirmed by the Senate) and 5 attorneys elected by their peers.  Of the 68 total current members appointed by Democratic governors, 49 are Democrats, 2 are Republicans, 12 are Independents (with 3 having previously registered as Democrats), and 5 whose voter registration could not be determined.  Interestingly, among those appointed were several wives of prominent Democratic attorneys including, until just recently, the wife of Congressman Bruce Braley.

Even among the elected members of the district commissions, Democrats have an overwhelming majority.  Of the 71 total current elected members, 44 are registered Democrats, 16 are Republicans, 4 are Independents (with 1 having previously registered as a Democrat), and 7 whose voter registration could not be determined.

In conclusion, it is time to stop glorifying the Missouri Plan as nonpartisan and recognize it for what it clearly is—the dominance of one party, the Democrats, behind closed doors.  The solution isn’t judicial elections which compromise judicial integrity and independence, but rather a nominating process much like that on the federal level which would bring the process out into the open and turn it over to those directly answerable to the people.  While politics cannot be entirely removed from the process, at least the process can be made more open and accountable.

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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