On Tuesday, the State Judicial Nominating Commission nominated Assistant Attorney General Bruce Kempkes and trial court Judges Susan Christensen and Michael Mullins to the Iowa Court of Appeals to fill the vacancy created by Justice Edward Mansfield’s appointment to the Iowa Supreme Court. While Governor Branstad has thirty days to appoint one of the three nominees to the bench, he has no choice but to select Mullins as the next judge.
Though the people of Iowa will never learn why a cloistered, unelected Commission dominated by trial attorneys selected these three nominees, certainly we can feel confident that they are the best of the best of the best. As Justice Wiggins, who chairs the Commission, assured Iowans in December: “I believe, in my experience with the commissions, that we do the best job forwarding the best candidates to the sitting governor. I also believe that, once those names are forwarded to the governor, all the governors I’ve been involved with–and I go back to when Gov. Ray was governor–the governor selects the very best candidate.”
Under this unrealistic defense of Iowa’s “merit-selection” system, therefore, one can easily deduce that, in this case, the very best candidate can only be Judge Mullins. Mullins has had the most success before the Commission, being selected earlier this year as a nominee to the Iowa Supreme Court (though not in 2008), and as a finalist to the Court of Appeals in both 2009 and 2010. Mullins’ problem has not been in convincing the Commission as to his “merit,” but in convincing the governor.
The Commission appears to be lending Mullins a helping hand in this case by selecting Kempkes as a fellow nominee. Along with Mullins, Kempkes had applied for a seat on the Supreme Court in January but, unlike Mullins, the Commission did not choose him as a nominee. The only conclusion that can be drawn is that Mullins is more merited than Kempkes and, consequently, it is inconceivable that the Governor could select lessor-merited Kempkes over Mullins.
The governor’s choice apparently comes down to Judges Mullins and Christensen, except that both Kempkes and Christensen applied for a seat on the Court of Appeals in 2006, but Kempkes, not Christensen, was selected by the Commission as one of the nominees. The inescapable conclusion, therefore, is that the Governor cannot pick Christensen because Kempkes is more merited than her. And because the Governor cannot choose Kempkes because Mullins is more merited than he is, Branstad has no choice but to appoint Mullins to the court as the very best of the three.
Of course, there may be more valid reasons for Branstad to refuse to select one or the other of the nominees than the predestination mandated by Wiggins’ indefensible defense of the current selection process. For instance, there are plenty of reasons for Branstad not to select Kempkes, who proudly noted in his application his two law review articles, both of which clearly indicate his belief that the Iowa Constitution embodies John Stuart Mill’s political philosophy of natural rights.
In The Natural Rights Clause of the Iowa Constitution, Kempkes argues that Section 1 of Article 1 of the Iowa Constitution, the Natural Rights Clause, guarantees to Iowans more expansive rights then those in the Declaration of Independence or the 14th Amendment to the U.S. Constitution.
The purely rhetorical Natural Rights Clause reads: “All men and women are, by nature, free and equal, and have certain inalienable rights–among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.”
Kempkes writes that “these assuring words,” which “do not have a single, definite, unqualified meaning,” “should be liberally construed” to “invalidate legislation adversely affecting personal liberty and happiness unless their exercise in some way harms or presents an actual and substantial risk of harm to another person.” All laws, he continues, are presumed unconstitutional unless and until the State can prove they pass such constitutional muster.
The Clause “provides a potentially powerful tool” in the hands of libertarians, “who may indeed know the truth,” “against the most complicated statutes of our day—those involving abortion, punishment, drug usage, expression, suicide, euthanasia, obscenity, and sexual conduct—if it appears the General Assembly enacted those statutes solely to protect a certain class of individuals from themselves. Such legislative paternalism or moralism offends the [Clause] by prohibiting the exercise of actions that can adversely affect no one but the actor.”
Unsurprisingly, Kempkes’ article was cited by “Professors of Law and History” in their brief against Iowa’s Defense of Marriage Act (DOMA) at the trial court level in Varnum v. Brien, by Freedom to Marry in their brief arguing against DOMA before the Iowa Supreme Court in Varnum, and by the Pacific Yearling Meeting of the Religious Society of Friends in their brief before the California Supreme Court challenging the constitutionality of Proposition 8.
Whatever its merits as a political philosophy, libertarianism as a judicial philosophy establishes the judiciary as a super-legislative body second-guessing when an otherwise constitutional law becomes unconstitutionally paternalistic or moralistic. Recognizing this, Kempkes notes in his second law review article that “it is somewhat surprising that the framers neglected to discuss the scope of this judicial power [in drafting the Iowa Constitution]…Obviously, it is difficult to determine from the tangled evidence how much power the framers intended the courts to wield.”
Undeterred, however, he argues that “the Iowa Constitution may prove to be the silver bullet in a lawyer’s bandolier when more ‘traditional’ grounds provide no relief to a client.”
Though the other two nominees may disagree with Kempkes on the definition and scope of the Natural Rights Clause, the unfortunate reality is that they may well share his activist judicial philosophy. It is imperative, therefore, that the Governor adequately screen the nominees and make their views on judicial ideology publicly known.
Judicial philosophy matters, and it would be inexcusable for the Governor to appoint someone to the bench who cannot agree with him that: “It is the role of the judiciary in the state of Iowa to say what the law is, as applied to cases before the courts, rather than saying what the law should be. The separation of powers is central to our Iowa Constitution.”
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