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April 14th, 2011

The McCoys and The Whitakers

By Nathan Tucker

Grudges never die.  A state senator apparently took out his vengeance on the law partner of the prosecutor who filed extortion charges against him, and in return he agreed not to file a fatal amendment to a transparency bill aimed at the Iowa Association of School Boards.

On March 2nd, Governor Branstad named William Gustoff and Helen Sinclair to the State Judicial Nominating Commission to replace Timothy Mikkelsen and Coleen Denefe, respectively, whose terms expire April 30th.

Sinclair, a generous Republican donor, was unanimously confirmed by the Senate to the Commission on April 4th.  Though the Democratic-controlled Senate considered her nomination uncontroversial, one high-level Branstad staffer described  Sinclair as a female version of her more controversial fellow nominee.  Echoing those sentiments, a friend of Sinclair told The Iowa Republican that the Commission will have its hands full with her.

Like Sinclair, Gustoff appeared headed towards Senate confirmation despite the early attacks on his nomination.  The Senate Judiciary Committee unanimously voted him out of committee on March 28th with a recommendation that the entire Senate confirm him.  On March 29th, however, Senator Hogg (D) removed Gustoff’s name from the list of uncontroversial nominees that would be voted on as a group and had it placed on the list for individual consideration.

Though troubling, such a move does not necessarily doom a nomination, and as late as Monday Gustoff was still meeting with Democratic senators and answering their questions.   But whatever optimism was felt was dashed on Tuesday when the Senate voted 27-13 in favor of his nomination, coming up six votes short of the necessary two-thirds super-majority for confirmation.

Though Senator Sorenson (R) voted with twelve Democrats against Gustoff’s nomination, he did so in order to file a Motion to Reconsider.  (A similar maneuver was done in Isaiah McGee’s failed nomination as well).  That motion, however, has not been filed at the request of Gustoff, who saw no point in prolonging the inevitable.

The twelve Democrats stated that they voted against Gustoff’s nomination because they felt the Governor-appointed members of the Commission should be reserved for non-attorneys.  There is nothing, however, in the Iowa Code or Constitution that prevents the Governor from appointing an attorney, and several wives of prominent (Democratic) attorneys have been governor-appointed members of the Commission.

The Democrats also cited Gustoff’s role as local counsel in a lawsuit, now on appeal, challenging the nondemocratic makeup of the Commission.  Though Gustoff’s minimal involvement in the case ceased when the case was appealed, and despite recently withdrawing entirely from the case, Senator Hogg claimed that Gustoff’s professional obligations to his now-former clients poses an unacceptable conflict of interest.

Hogg, as the only attorney in the Senate, should know better.  The only way Gustoff could violate the Iowa Rules of Attorney Conduct is by: (i) turning around and representing the Commission in the suit, and/or (ii) breaking attorney-client privilege.  But the public reasons don’t have to make sense; they simply have to be plausible enough for a gullible media to buy into.

The apparent reason for the vote against Gustoff’s nomination is an agreement brokered behind the closed doors of the Senate Democratic Caucus.  According to several lawmakers, Senator McCoy (D) wanted to file an amendment that would carve out an exception to the school board transparency bill.  Doing so, however, would create a wave of similar amendments that would dismantle the legislation.

To avoid this, McCoy agreed to drop his amendment in exchange for enough Democratic votes to kill Gustoff’s nomination.  Why?  Because McCoy was charged with extortion in 2007 by Matthew Whitaker, Gustoff’s law partner, who was the U.S. Attorney at the time.  In culmination of the deal, the transparency bill passed the Senate, without a McCoy amendment, the day after the Gustoff vote.

So much for our much-lauded nonpartisan judicial selection system at work.

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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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