Iowa GOP rigging the courts?
Iowa Republican leaders, and their conservative base, have chafed in recent years under a number of decisions made by Iowa courts.
They’re out to do something about it.
Two such measures to “conservatize” the state are working their way through the Legislature.
One is an amendment to the Iowa Constitution regarding abortion. If adopted in both houses of the Legislature, it would require approval by the next Legislature as well, then would go to the residents of Iowa in a referendum. The earliest that could occur is 2021. Time enough for Iowans to chew on it and decide what to do about it.
The other could take effect this year, and would substantially change the way in which the state has filled judicial vacancies since the early 1960s.
Social conservatives are propelling both measures.
Since they hold the reins of the Republican Party, and since the party controls both houses of the Legislature and the governor’s office, conservatives have the power to push both documents forward if they so choose. And they are making that choice.
The proposed amendment is an attempt to abolish the Iowa Constitution’s guarantee of a woman’s right to choose to have an abortion.
The Iowa Supreme Court declared that constitutional right last June when it ruled against the state’s new three-day waiting period for a woman who wants to have an abortion.
“ . . . a woman’s right to decide whether to terminate a pregnancy is a fundamental right under the Iowa Constitution,” the Iowa Supreme Court declared last year.
In the current term of the Legislature, conservatives filed their proposed amendment just days after the Iowa Supreme Court threw out the “fetal heartbeat” bill adopted by the Legislature and signed by Gov. Reynolds.
That act stated that a fetus can’t be aborted once a heartbeat is detected — in other words, as early as six weeks. Sometimes a woman doesn’t know she is pregnant that soon.
The proposed amendment to the Iowa Constitution states: “The Constitution of the State of Iowa does not secure or protect a right to abortion or require the funding of abortion.”
Of course, so long as the U.S. Supreme Court continues to hold to its Roe v. Wade decision of 1973 — that an abortion is a constitutional right of choice of a woman in the United States — the proposed Iowa amendment would be meaningless in practice.
But the U.S. highest court is more conservative today than it was in 1973, and President Trump has vowed to appoint conservatives to the federal bench. He has done so with Justices Neil Gorsuch and Brett Kavanaugh.
If the U.S. Supreme Court were to reverse Roe v. Wade, and Iowa were to adopt the proposed state constitutional amendment, Iowa women who opt for an abortion could not fall back on the Iowa constitutional guarantee as their right.
The proposed Iowa amendment has 29 Senate sponsors, a majority of the 50-seat body.
A Senate subcommittee held a public hearing on it last week.
The other measure to bring Iowa courts under political control would drastically revise the state’s judicial selection process.
Iowa residents in 1962 adopted a constitutional amendment that created a merit system for selection of judges in the state. Since then, multi-member commissions have nominated selectees for judicial vacancies. The governor chooses one of the nominees to fill the vacancy.
A 17-member commission selects three nominees for a supreme court vacancy. The commission is composed of eight members selected by the governor and eight members selected by attorneys of the state, plus the longest-serving Iowa Supreme Court justice. Members of the nominating commission must be approved by the Iowa Senate.
The commission considers all who put themselves up for the position, makes the three nominations, then the governor selects one of the three.
The system is called the Missouri Plan.
It originated in Missouri in 1940, and has been adopted by a number of states, including Iowa. It’s widely recognized across the nation as a nonpartisan, balanced way to select judges.
Attorneys work on a daily basis with their peers who seek to move to the judicial bench, and therefore are knowledgeable about their qualifications.
In addition to the Missouri Plan, Iowa also requires its judges to be approved by the state’s voters every few years as a way to give residents a voice in their judicial branch.
Following the Varnum decision that established marriage equality in the state a few years ago, Iowa voters turned out three of their supreme court justices who had supported that decision.
But legislative conservatives apparently have decided they need more control over the judicial branch.
The 1962 Iowa constitutional amendment states that the Missouri Plan will be in effect in the state — “unless otherwise provided by law.”
In other words, if the Legislature and the governor decide to change the selection method, they can do so without submitting the issue to a voters’ referendum.
That’s the intention of the conservatives.
The proposed change would eliminate attorneys from selecting their eight slots on the nominating commission. Those slots would go instead to legislative leadership: two each to the Senate majority leader, the Senate minority leader, the speaker of the House and the House minority leader.
That would give four votes to Republican leadership and four to Democratic leadership.
Combined with the eight governor-selected members, the upshot today would be 12 Republican-selected slots and four selected by Democrats on the commission.
The governor would select the commission chair from among the 16 members.
Similar changes are proposed for the district court selection process.
The bill would also remove the requirement that commission members be approved by the Iowa Senate.
The bill is about to start its journey through the committee process in both houses.
Other than through the ballot box at election time, Iowans won’t have an opportunity to voice their opinion about the proposed changes to the judicial selection method they approved by constitutional amendment in 1962.