Electing justices not right for Iowa

An opinion piece in Sunday’s Des Moines Register by Joel Kurtinitis urges that Iowa change its method for selecting state Supreme Court justices. In my view that would be a mistake.

For the past several decades Iowa has filled its court vacancies using a nominating commission which sends names of several applicants to the governor, who then picks a justice from that list.

For a Supreme Court vacancy, the committee nominates three applicants and the governor selects one from those three. The Iowa Senate, unlike the U.S. Senate, does not “advise and consent” to the governor’s selection.

If the governor fails for 30 days to appoint one of the nominees to fill the vacancy, the chief justice of the Supreme Court does so.

The nominating commission for Supreme Court vacancies is composed of 16 members. Eight are appointed by the governor. The other eight are appointed by the Iowa Bar Association from among its attorney membership.

Mr. Kurtinitis, in his detailed op-ed, calls for an end to the Bar Association’s role in selecting court nominees. He would like “... everyday Iowans, either by direct or indirect election, to have more say in the future of our third branch of government.”

I’m not exactly sure what he means with that phrase, but I think he wants either to have a citizens-only nominating commission, devoid of lawyers picked by the bar association, or to have direct election of judges by popular vote.

For myself, I can quickly rule out option two.

A number of states have direct election of judges. In those states, judicial candidates campaign for the office the way candidates for other offices do. They buy ads, hire campaign staff and sometimes run on specific hot-button issues, either for or against them.

It’s startling to drive through one of those states and see giant billboards supporting a candidate for a judgeship.

That road leads to judicial corruption, in my opinion. Judicial candidates who accept campaign money from an individual, a business, or an organization that stands to benefit from a particular court ruling are ipso facto subject to suspicion of graft: “Fund my campaign and I’m likely to rule in your favor.”

I fear that minority rights, civil rights and human rights would be in jeopardy under that system. Majority opinion doesn’t always protect the constitutional rights of minorities.

Option one, though, is more complicated.

In that case, Mr. Kurtinitis is concerned that attorneys currently have too much power in the selection of Iowa Supreme Court justices, through their 50 percent membership on the nominating commission. He would like to see that situation changed.

The Iowa Constitution indeed allows the Legislature to change the makeup of the judicial nominating commission. So no constitutional amendment would be necessary to accomplish that change. It could be done simply by law.

I disagree with Mr. Kurtinitis’ recommendation on the judicial nominating commission membership also.

Under our legal system as it now stands, judges decide what the law is. And the law is a complicated creation.

Familiarity with prior judicial rulings, for example, is very often crucial when a judge makes a decision. There’s a reason a law degree takes at least three years of legal education beyond a bachelor’s degree.

I want the judges of my state, especially if I would have a case that goes before them, to be intimately familiar with the ins and outs of the law. I would prefer to have a solid group of attorneys on any commission that selects nominees to fill court vacancies. They know how to evaluate the qualifications of applicants: what questions to ask them, how to determine their knowledge of the law.

Under the Iowa judicial system, the voters already have a powerful role in selection of judges: they can vote them out.

All judges have to stand for retention by the voters on a periodic basis, and voters have exercised that power in the recent past.

Remember when three of Iowa’s Supreme Court justices were voted off the bench after they ruled in favor of marriage equality a few years ago?

That’s plenty of citizen power.

Full disclosure:

A few years ago, one of my brothers officiated the marriage of one of our sons. During the ceremony he warned the bride: “Our family is filthy with lawyers.”

He’s right.

My dad, another of my brothers, another of our sons, a niece and a nephew all earned law degrees.

But that is not why I disagree with Mr. Kurtinitis. I think that attorneys, who through close contact in the practice of their profession know what makes a good judge, should have a role in selecting nominees from the applicant pool to fill judicial vacancies.

Iowa’s current system provides just that. It should remain intact.

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