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January 27th, 2011

Debating Merit

By Nathan Tucker

If there is one thing that stands out from watching the State Judicial Nominating Commission interview the sixty applicants for the Iowa Supreme Court, it is that there is no single definition of what constitutes merit.  For a system that prides itself on its alleged ability to pick the very best of the best of the best to serve on the bench, the commission interviews have amply demonstrated that the selection process is anything but a scientific method.

As one of the applicants noted in his interview, the application material did not explain how the Commission defined the term “merit,” nor can such a definition be found in the Commission’s rules of internal procedure.

Though it often refers to itself as a “merit-based” selection process, neither the Iowa Constitution nor Code uses or defines that term.  In fact, there is very little in Iowa law that limits the discretion of the Commission in selecting nominees to forward to the Governor for his selection.

The only statutory guidance can be found in Iowa Code Section 46.14, which provides that nominees “shall be chosen…upon the basis of their qualifications and without regard to political affiliation.”  There is no legal requirement that the nominees must be the most qualified, nor is there any definition of the term “qualifications.”

The interviews make apparent that, in making its selection, the Commission has not confined itself to simply weighing the merits of the resumes before it.  Even if it did, the questions asked by commissioners leave the impression that they may be unable to agree on how to compare legal experiences.

Some gave the impression that they wanted a trial lawyer who had extensive experience “in the trenches,” while others praised those applicants with experience writing and arguing at the appellate level.  Some commissioners appeared to seek nominees with broad experience in a wide-range of legal issues, while others favored those with more specialized practice areas in administrative law or worker’s compensation.

Applicants with legal scholarship, whether as a law professor or practicing attorney, were lauded for their intellectual accomplishments, though some commissioners seemed skeptical that they could relate to everyday Iowans.  And while a number of sitting trial judges applied for a position on the Supreme Court, several commissioners questioned whether they could make the successful transition from trial work to appellate work.

But in addition to judging resumes, the questions asked by commissioners indicated that at least some of them would be basing their selection on a number of other factors.  One of the most persistent of these non-resume factors was geographical balance, and many applicants were asked what role, if any, geography should play in the Commission’s selection.

Sticking to the Bar’s talking points, several candidates replied that resume, not geography, should play a role in the “merit-based” selection process.  Many others, however, argued that geographical diversity was an important factor, though they disagreed on why.  Some tried to make the case that it actually made them a better candidate because they would bring a different local perspective to the Supreme Court, while others simply stated that it was important because it was a factor traditionally used by the Commission that mattered to Iowans, particularly those in rural areas.

Another common non-resume factor that many commissioners appeared to desire was diversity of gender, race, age, and sexual orientation.  Again, a few applicants told the Commission that these personal characteristics should have no role in a “merit-based” process.  But the overwhelming majority of candidates argued that such diversity was important, if for no other reason than for Iowans to be able to see a Supreme Court as diverse as they are.

Tragically, no one protested that such considerations would blatantly discriminate based on characteristics that, with the exception of sexual orientation, an individual is powerless to change.  It is ironic that many of the very applicants who vowed to protect the equal rights of all Iowans appear to have forgotten Dr. Martin Luther King, Jr.’s dream that “my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

The final non-resume factor that the Commission seemed interested in was judicial ideology, but sadly not for the sake of diversity.  Applicants who claimed that judicial activism was not a problem in Iowa were not queried further, while those who had indicated, either in their application material or opening statements, an intent to exercise judicial restraint were at times subject to intense scrutiny.

To no one’s surprise, Justice Wiggins, who chairs the Commission, took umbrage at the thought of exercising some judicial self-control, even asking one such applicant how he would have ruled in a particular case the Court decided in the 1800s.  Taking his cue from Wiggins, Governor Branstad should reverse his position against using past precedent as a means to inquire into an applicant’s judicial philosophy.

In short, the Commission interviews have shown that the process is not, nor can it ever be, scientific.  As demonstrated by the questioning, the selection of judges always involves imprecise value decisions about an applicant’s resume, geography, ideology, and diversity.

The Commission is not now, nor has it ever been, concerned with selecting the “very best” candidate based on resume alone.  Other factors are always taken into account, 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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