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February 19th, 2011

Demerited

By Nathan Tucker

While it remains unclear how judicial nominating commissions define merit, last week we learned that an applicant can, in fact, lose his merit, and do so in the span of two months.  Apparently, once a nominee does not necessarily mean one will always be a nominee.

Last Friday, the Judicial Nominating Commission for the Seventh Judicial District nominated Joel Barrows and John Telleen for a trial court judgeship.  The Governor has thirty days from the 11th to appoint one of them to fill the vacancy in a district which serves Scott, Clinton, Muscatine, Cedar, and Jackson counties.

The two nominees were selected from a field of twelve applicants, eight of whichhad applied in December for an earlier vacancy in the Seventh District.  Among the returning eight applicants was Mark Lawson, one of the two nominees previously selected by the local commission to forward to the Governor.  In the waning hours of his administration, Governor Culver ultimately appointed the other finalist, Thomas Reidel, to the bench.

Though one of the two “best of the best of the best” candidates in December, Lawson has apparently and inexplicably lost his “merit” in the eyes of the commission.  If the commission had chosen two of the four new applicants as finalists, they could have made the plausible explanation that, while Lawson remained the best of the original eight applicants, these newcomers were so much better by comparison.

But while the local commission did nominate one new applicant, John Telleen, it demoted Lawson in favor of a candidate he beat out in December, Joel Barrows.  The commission, of course, has given no indication as to why Lawson was more meritorious then Barrows in December, but now Barrows is more meritorious then Lawson in February.

Joel Barrows is an Assistant U.S. Attorney whose application can be found here.  Though a registered Independent, Barrows gave $250 to former Iowa Governor Chet Culver (D).  On February 13th, Barrows provided Iowa Judicial Watch with the following statement:

While I was briefly registered as an independent, I am currently a registered Republican, as I have been fairly consistently for many years. My last political contribution was to Governor Branstad during the gubernatorial election last year in the amount of $250. I have been previously nominated by the Commission. This was just over two years ago. Governor Culver selected Judge Paul Macek over me. I would characterize myself as an advocate of judicial restraint.

John Telleen is a partner at Lane and Waterman, the same firm that Iowa Supreme Court nominee Thomas Waterman is a shareholder at.  In his application material, Telleen states that:  “I believe deeply in justice for all and think that my background leads me to know the ‘right thing to do.’”  He is a member of the Iowa Academy of Trial Attorneys and a registered Republican who has given $125 to Iowa Governor Terry Branstad (R) and $200 to former Congressman Jim Leach (R).

The local nominating commission appears to be following the lead of the State Judicial Nominating Commission in two respects.  First, in pointed contrast to its past practice, the Commission posted the names and applications of the candidates on the Iowa Judicial Branch’s website for the public to view.  The local commission has also adopted the application used by the State Judicial Nominating Commission.  In previous practice, the local nominating commissions often used applications that varied from each other and the statewide commission.

Second, the Seventh Judicial District Nominating Commission amended its rules to allow the public to watch in person as it interviewed the candidates last Friday, though it did not make the interviews available on the internet.  The actual deliberations and voting remained behind closed doors, for opening these proceedings to the public would belie the myth that the system is an objective, scientific process for selecting the “very best” applicants based on resume alone.

As this case demonstrates, factors such as a candidate’s ideology, geography, race, gender, temperament, and connections are always taken into account.  Lawson didn’t receive the nomination because his resume suddenly plunged within a span of two months, nor did Barrows get the nod because his resume drastically improved within that time span.  Rather, the commissioners’ subjective opinions of the two applicants evolved since December due to a number of non-resume based factors that, unfortunately, the public will never know about.

This case aptly illustrates the need 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 nathanwt@juno.com.




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