Iowa lawmakers are surely familiar with the adage “If it ain’t broke, don’t fix it.” Why, then, are they trying to fix a judicial system that isn’t broken?
Iowa’s approach to the courts and to its legislative redistricting process are among the best in the nation. When one national group mapped how state districts would look if the gerrymandering so common in other states was reversed, Iowa’s map didn’t change at all.
The courts are a different matter, of course. But Iowa has done a reasonably good job of insulating judges against political influence.
Nominees for the Iowa Supreme Court and the Iowa Court of Appeals are selected by a 17-member nominating commission. Eight members are chosen by the governor with the approval of the Iowa Senate. Eight more are elected by Iowa’s attorneys, the people who know the judicial system the best. The Iowa Supreme Court’s senior judge, aside from the chief justice, chairs the commission.
Commissioners select three nominees. The governor chooses one.
The proposal would eliminate Iowa attorneys’ role in the selection of commissioners. Instead the speaker of House, the House minority leader, and both the Senate’s majority and minority leaders would each make two appointments. The governor would select the commission’s chair from among the members. That change creates a 16-member commission and raises the possibility of ties.
Supporters say this is a way to remove undue influence from a relatively small group of people and putting responsibility for the commission with others who are answerable to voters.
Don’t you believe it.
The fact appointees face a retention election soon after their appointments already gives voters a direct say. This system has worked well since it was put in place since 1962, and there is no valid reason to change it.
What’s the real reason for this move? We suspect it comes down to disagreements with judicial rulings over the past decade. The court’s unanimous decision in Varnum v. Brien legalized same-sex marriage, and was hugely unpopular with Republican voters. More recent decisions overturning the state’s fetal heartbeat law, which prohibits abortion after a heartbeat is detected, and striking down a law requiring a 72-hour waiting period for abortions were likewise decried by conservatives.
But even that history undermines the argument that the courts are impervious to voters’ reactions. Three of the justices who decided Varnum v. Brien lost the next retention vote after a vigorous campaign by opponents of the decision. Voters had their say.
The proposed changes will not further assert the public’s voice with regard to the courts. Rather, it will position legislators to assert their self-proclaimed expertise in the place of those who have actual expertise.
Legislators already have remedies to their complaints. When a court makes a decision with which they disagree, they can pass laws or amend the Constitution to invalidate the decision. It’s surgical, a discrete response to a specific issue.
This approach, on the other hand, is anything but discrete. It’s a sledgehammer, altering the fundamental processes that create the court. It’s a fix only in the sense of trying to secure a predetermined outcome, as with the phrase, “the fix is in.”
Iowa’s courts aren’t broken. Legislators should not be trying to fix them.