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January 21st, 2011


By Nathan Tucker
In his State of the Judiciary Address last week, Chief Justice Mark Cady argued that “public confidence in the merit selection system can be enhanced if the nominating commission is made more transparent.”  The State Judicial Nominating Commission, however, continues to do everything in its power to stonewall efforts to open the process to the public view.

For instance, on December 29th, Iowa Judicial Watch (IJW) made the simple request for a copy of the application form to be used by attorneys applying for the three pending Supreme Court vacancies.  It took over a week before we finally received copies of the application material.

Because of the delay in receiving the material, IJW made a Freedom of Information Act (FOIA) request for a list of all those who requested an application and received one before we did.  To date, this request has been ignored.

In hopes of learning more about the candidates, IJW requested copies of all letters in support of, or opposition to, any of the applicants.   This request was made on December 19th and, to date, has been ignored.

In his remarks, Chief Justice Cady stated that he recommends the various nominating commissions adopt uniform rules of procedure.  Perhaps, however, he should have added that the commissions follow those rules.

The State Nominating Commission’s bylaws require that David Boyd, as Secretary of the Commission, “prepare and keep the minutes of the meetings..Minutes shall be kept of public and nonpublic sessions of meetings.”

On December 19th, IJW requested the minutes of all Commission meetings since Election Day.  Boyd responded that, though the Commission has met since Election Day, minutes have not yet been prepared for those meetings.  On January 8th, IJW requested all notes taken by Boyd, or someone acting on his behalf, of all Commission meetings since November 2nd.  IJW also requested the minutes of all Commission meetings for the past five years.  Both requests have been ignored.

The Commission is scheduled to begin interviewing the sixty applicants on Monday, January 24th.  For the first time in state history, it has agreed to allow the public to view the proceedings, either in person or via streaming video online.  Unfortunately, it is likely that all the public will see is a dog and pony show.

Despite our public challenge to the Commission to stop interviewing applicants in private, IJW has learned that commissioners continue to meet with candidates one-on-one outside the view of television cameras.  IJW has received first-hand accounts that some of these private interviews have included discussions of Varnum v. Brien (2009), Iowa Judicial Watch, and the public calls for the impeachment or resignation of the four remaining justices.

Of course, none of these discussions will be repeated for the cameras next week, for doing so would destroy the illusion that commissioners only select finalists based on their resumes as opposed to more subjective variables.  Rather, the public interviews will be an uneventful, boring production that simply rehash material covered in a candidate’s application.

Only the actual deliberation and voting on applicants would be enlightening, but the Commission has refused to open that process to the public.  If the commission system is truly “merit based” in that it only forwards to the Governor those applicants that are, based on resume, the best of the best of the best, then certainly public concern over the process could be put to rest once and for all by a candid and transparent example of this scientific process at work.

But the process is not, nor can it ever be, scientific.  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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