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January 5th, 2011

A Judicial Litmus Test

By Nathan Tucker

The current judicial selection process is often touted by its proponents as being “merit-based,” creating the impression that the nominating commissions will judge applicants for judicial vacancies solely on the merit of their resumes.  Justice Wiggins, the current chair of the state nominating commission, recently made the ludicrous claim that only the “very best” candidates are appointed to the bench.

With few exceptions, however, there will rarely 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 well qualified, the selection will come down to a number of subjective variables other than an individual’s resume.

Foremost among these variables should be an applicant’s judicial ideology, something which Governor Culver appears to have fully appreciated.  In response to a Freedom of Information Act request, Iowa Judicial Watch received a memorandum created by the Governor’s Office in preparation for interviews with two finalists for a recent judicial vacancy in Judicial District 3B.  Among the agenda items was a discussion of “Judicial Philosophy:  What are we looking for from our judges?”

Governor Culver understands that this is a battle over the ideological makeup of the courts.  As a result of the political seduction of the law, whoever controls the judiciary controls which policies and “minority rights” will be favored.  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.

Because of the stakes, it is imperative that applicants to judicial vacancies undergo a vigorous judicial litmus test.  To avoid any possibility that an applicant may prejudge a case that may appear before him or her in the future, the litmus test doesn’t need to ask whether an applicant agrees with this or that decision in order to be effective.  Rather, Iowa Judicial Watch proposes that the legislature require that the judicial application form include the following broad, generic questions which go to the heart of one’s ideology.  These are essay questions much like the applicants may have encountered on a law school exam and, just as in answering those exam questions, answering these will not require an applicant to recuse him-or-herself in hearing a future case.

  1. Please describe your theory of constitutional interpretation.

a.  Explain the ideas of a “living constitution” and “originalism” and which one best depicts your judicial philosophy.

b. Explain what role, if any, evolving societal standards play a role in interpreting the constitution.

  1. Explain if there is there a penumbra of unenumerated rights found in either the U.S. or Iowa Constitutions.  If so, is the “right to privacy” included in that penumbra, and how do you define this right?  What other rights might be included as well?

d.  Explain whether the phrase “separation of church and state” adequately summarize the Establishment Clause of the First Amendment to the U.S. Constitution.

e.  Do you believe that courts should apply a higher standard of scrutiny to laws that affect “discreet and insular minorities” and a lower standard of review for property rights?  If so, please explain why and define what a “discreet and insular minority” is.

  1. Explain whether the 9th Amendment of the U.S. Constitution or Section 25 of Article 1 of the Iowa Constitution confer unenumerated rights and/or create a zone of privacy.

g.  Explain whether there is there such a thing as “substantive due process” under either the Iowa Constitution or the 5th and/or 14th Amendments to the U.S. Constitution.

h.  What is the meaning of the Privileges or Immunities Clause of the 14th Amendment?

2.  What is the role of courts in society?  For instance, recently the Iowa Supreme Court was praised for its history of often being “decades ahead of the U.S. Supreme Court” and the “norms of their time” in recognizing new constitutional rights.  Please explain if this something that judges should be engaged in.

  1. What role, if any, should empathy play in judging?

4.  Explain judicial activism and when, if ever, it is justified.  Can you give any examples of judicial activism in Iowa and, if so, do you consider it justified?

  1. Please describe what you believe to be:
    1. The best Iowa Supreme Court decision and why.
    2. The worst Iowa Supreme Court decision and why.
    3. The best U.S. Supreme Court decision and why.
    4. The worst U.S. Supreme Court decision and why.

6.  What is your perspective on when, if ever, a court should overturn its own precedent?

7.  What pertinence, if any, should international law sources have for constitutional interpretation?

8.  Do you have a theory of statutory interpretation? For instance, U.S. Supreme Court Justice Antonin Scalia discerns legislative intent by relying exclusively on the statutory text, while U.S. Supreme Court Justice Stephen Breyer consults relevant legislative history, such as committee reports.  To what extent do you believe legislative history has a role in statutory interpretation?

Without knowing the answers to these questions, the commissioners, governor, and the public will be in the dark about what the applicants believe until it is too late.

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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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