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December 12th, 2010

The Best of The Best of The Best?

By Nathan Tucker

Speaking recently at an event sponsored by the Iowa chapter of the American Constitution Society, Iowa Supreme Court Justice David Wiggins made the startling claim that, without fail, the “very best candidate” is always chosen for a judicial vacancy.

Wiggins, who will chair the nominating commission that selects the finalists to replace the three fired justices, was joined on the panel by Troy Price, the political director of the gay right’s group One Iowa; R. Ben Stone, executive director of the American Civil LIberties Union of Iowa; and Drake Law School Professor Ian Bartrum.  Bartrum, who teaches constitutional law, has written:

I contend that…[the] text’s meaning in constitutional argument can evolve over time, and hopefully [this paper] offers the creative practitioner some insight into the kinds of arguments that might accomplish this change….

That is, there are no ‘right’ answers to many constitutional questions; there are no foundational kinds of definitions for the most controverted constitutional terms…All that we have is the constitutional conversation itself–this discussion and its derivative decisions are, in fact, the constitution…

The decidedly biased makeup of this panel isn’t surprising, given that the American Constitution Society (ACS) is a liberal organization funded in part by liberal financier George Soros’ Open Society Institute.  ACS was created to “debunk the neutrality of [the original public meaning of the Constitution] and expose misleading criticisms [of a living constitution in order to articulate] effective and accessible methods of interpretation to give full meaning to the guarantees contained in the Constitution.”

In his remarks, Wiggins defended the ”non-partisan” commission system for selecting judges, arguing that:  “I believe, in my experience with the commissions, that we do the best job forwarding the best candidates to the sitting governor.  I also believe that, once those names are forwarded to the governor, all the governors I’ve been involved with–and I go back to when Gov. Ray was governor–the governor selects the very best candidate.”

This is a remarkable blanket statement that the commission system has never once failed to produce “the very best candidate” for the job, and it is unfortunate that it went unchallenged at the forum.  Certainly the audience and members of the media should have demanded that Wiggins explain the objective criteria he used in making this determination.

For instance, it would be amusing to hear Justice Wiggins explain how he was the “very best candidate” for his seat.  He was one of three finalists chosen by the state nominating commission and forwarded to then-Governor Vilsack for his selection.  The other two finalists were Brent Appel and Daryl Hecht, both of whom were later appointed to the Iowa Supreme Court.  It would be interesting to know if Appel and Hecht agree that Wiggins was the “very best” of the three of them.

Appel was appointed to the Iowa Supreme Court by Governor Vilsack from a pool of finalists that included David Baker and Anuradha Vaitheswaran.  Baker now sits with Appel on the Iowa Supreme Court, and Vaitheswaran was subsequently appointed to the Iowa Court of Appeals.  By what objective criteria do we know that Appel was the “very best” of the three of them?

Before being appointed to the Supreme Court in 2006, Baker served for two years on the Iowa Court of Appeals.  He was appointed to the intermediate appellate bench by Governor Vilsack from among a pool of finalists that included Richard Doyle. Doyle now sits on the Iowa Court of Appeals, but only after being passed over twice–once for Baker and later when Amanda Potterfield was appointed.  By what standard of measure was Doyle not considered the best of the best the first two times he applied, but was the third time?

In finally being selected for the Iowa Court of Appeals in 2008, Judge Doyle beat out a pool of finalists that included Mary Tabor.  Judge Tabor now serves with Doyle on the Iowa Court of Appeals, but not before she was passed over again in 2009 when she wasn’t even chosen by the commission as one of the finalists.  David Danilson received that appointment to the bench.

How is it, then, that Tabor could go from being a finalist one year, to not making the cut the next year, to being appointed to the court the following year?  Certainly a typical applicant’s resume does not become that much more or less impressive within a span of a year, nor does the professional caliber of the application pool greatly fluctuate from one nominating cycle to another.  And, if an individual is not considered the “very best” the first or second time they apply, why should we “settle” for them the next time?

Wiggins’ ludicrous claim that only the “very best” candidates are appointed to the bench only reveals how truly standardless the selection process is.  With very few exceptions, there will not be an applicant who stands head and shoulders above all others.  Faced with making a decision from a pool of applicants who, from a professional standpoint, are very qualified, the selection will come down to a number of subjective variables other than an individual’s resume.

Research has demonstrated that foremost among these factors are a candidate’s ideology and connections, which explains why participation in the Democratic Party and other liberal causes has far too often become a necessary stepping stone for those seeking a seat on the bench.  It is through this process that applicants come to the attention of the liberals who dominate the selection process, who in turn will be more inclined to appoint them to the court rather than someone with whom they have no affinity.

It is ridiculous for any judicial selection system to claim that it always picks the “very best” candidate based on resume, or that it even does so a majority of the time. The selection of judges always involves imprecise value decisions about a particular applicant’s character, ideology, and temperament, which is all the more reason for the process to be taken out of the hands of a cloistered, unelected commission and entrusted to a public process controlled by those directly accountable to the people.

These value judgments will always be a part of the process, but at least we can place the decision with those whose values and judgments were vetted by the people at the ballot box.

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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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