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January 30th, 2011

Unconvinced

By Nathan Tucker

If the past week was intended to demonstrate to Iowans that our current judicial selection system is a non-partisan merit-based process, many Iowans rightfully remain unconvinced.  Far from proving that the very best of the best of the best were chosen, the State Nominating Commission showed how personal connections, geography, race, gender, and ideology played a role in their selection process.

Though twelve women applied for a position on the Supreme Court, including several sitting lower court judges and Assistant Attorney Generals, only Angela Onwauchi-Willig was chosen from among them as a nominee.  For a Commission that appeared obsessed during the interviews with gender balance, this appears at first glance to be a strange decision.

But not for a Commission enraged at the people’s vote of no confidence in the judiciary.  This was a blatant political calculation intended to force Governor Branstad to select a liberal by pressuring him to appoint a minority woman to a court that currently has neither a minority nor a female on it.  It was also intended to snub the voters of Iowa by picking an outspoken advocate of judicial activism who joined a brief to the Iowa Supreme Court supporting Varnum v. Brien (2009).

Including Justice Wiggins, the chair of the Commission, five of the eight attorneys serving on the Commission are or were trial attorneys.  Not surprisingly, at least four of the nine nominees are trial attorneys, or were before assuming the bench:  Sioux City attorney John Gray, New Virginia attorney Stephen Lawyer, Judge Michael Mullins, and Davenport attorney Thomas Waterman.

Despite an overwhelming majority of liberal Democrats on a Commission that has a long history of picking fellow liberal Democrats as nominees, they chose six nominal Republicans to join three Democrats on the slate of nine nominees.  Given that Republican applicants only had a 26% chance of making it out of the Commission since 2005, it strains credibility to believe their odds increased two-and-a-half fold this time around by mere coincidence.  This is a sudden, and likely temporary, conversion to bipartisanship by an allegedly “non-partisan” Commission that supposedly never takes into consideration an applicant’s party affiliation.

But even if the Commission had forwarded the names of nine Republicans to the Governor, party affiliation is a rather crude indicator of an applicant’s judicial philosophy.  Knowing this, the Commission intentionally passed over any applicant who had, either in their interviews or application material, given any indication that they would exercise judicial restraint.

Many of these constitutionalists were treated with much more skepticism by the Commission than those who claimed that there was no such thing as judicial activism.  Treated as potential religious nuts, they were often asked by commission members if they could put aside their personal feelings when rendering a decision.  This was an ironic line of questioning, given that those asking the questions embrace a judicial philosophy that rules from the heart rather than the law.

Belying the notion that the Commission carefully weighed each applicant’s material, it narrowed the field of sixty applicants to nine nominees in less then seven hours.  Even if the Commission didn’t take time for voting, it comes to less then seven minutes to discuss the merits of each applicant.  Like a typical jury at the end of a week-long trial, it appears the commissioners just wanted to finish as quickly as possible to get back home.

And, of course, the Commission has failed to explain how these nine nominees are the very best out of all sixty applicants.  It would be interesting to see if any who were passed over by the Commission feel that those who were chosen were better qualified than they were.  They certainly didn’t think so in their interviews, taking great pains to convince the Commission of their comparative merit to that of their fellow applicants.

Governor Branstad must keep his promise to ensure that his appointees will exercise judicial restraint by publicly releasing their answers to his questions.  As with George W. Bush’s initial pick of Harriet Miers to replace Sandra Day O’Connor on the U.S. Supreme Court, conservatives will not be satisfied with a wink and a “trust me” from the Governor.  If this means he is unable to find three such appointees, he should then send such a stacked deck to Chief Justice Cady rather than be responsible for selecting an activist judge.

But just as important as who the next three justices are is the need to reform the selection process so that the commissioners are elected by the people of Iowa.  Until then, the process is guaranteed to produce decks stacked with liberals.

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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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