(CN) — Sixty years ago this June Iowa voters amended Iowa’s state Constitution to replace the partisan election of judges with a merit selection process modeled on the “Missouri Plan.” Iowa’s merit selection process remained unchanged until three years ago when the Republican-dominated Iowa Legislature made a change that critics say reintroduced partisan politics into judicial appointments. And there may be more to come.
Under Iowa’s merit selection process, the governor appoints trial and appellate judges from a list of two to five applicants selected by nonpartisan judicial nominating commissions. Those commissions — one for appellate courts and 14 for district courts — consist of public members appointed by the governor and lawyer members elected by resident members of the Iowa bar. Judges stand for retention before the voters at the end of each term.
In 2019 the Republican-dominated Iowa Legislature — with the backing of Republican Governor Kim Reynolds — changed the composition of the State Judicial Nominating Commission, which sends nominees for the Iowa Supreme Court and the Iowa Court of Appeals to the governor for making appointments.
Prior to the change, this 17-member commission was equally balanced between public and lawyer members, with the senior member of the Supreme Court other than the chief justice serving as chair. As amended by the legislature, the governor now appoints nine public members and the chairperson is elected from among the commission members, thus removing the senior justice and giving the political appointees a majority.
The legislation was vigorously opposed by advocates of nonpartisan judicial selection, including the Iowa State Bar Association, and the Iowa Association for Justice, a trial lawyers group.
Justice Not Politics, a non-partisan coalition of citizens and business leaders dedicated to keeping courts free from political and financial influence, denounced the legislation.
“This is a dark day for Iowa’s independent courts,” the group said in a statement. “One politician will now hold majority control over the process for nominating justices to Iowa’s highest court, injecting partisan politics into the system. Throughout this legislative session and over the past several years, Republicans, Democrats, and independent legislators and Iowans of all backgrounds have fought together to prevent this kind of partisan power grab.”
Conservatives had become increasingly critical of the Iowa Supreme Court since it unanimously struck down the state law limiting marriage to a man and a woman in 2009. That decision legalizing same-sex marriage triggered a firestorm of criticism that resulted in the removal of three members of the seven-member Supreme Court — including Chief Justice Marsha Ternus — in the 2010 judicial retention election.
Then, in 2018, the court delivered a major victory for pro-choice advocates with a 5-2 ruling striking down a state law that would have required a woman to wait 72 hours before obtaining an abortion and holding there is a fundamental right to abortion under the Iowa Constitution.
A year later the Republican-led legislature passed the bill giving the governor the power to name a majority of the members of the commission that nominates appellate judges. The bill also shortened the term of the chief justice, which was seen as a slap at then-Chief Justice Mark Cady, who authored both the same-sex marriage and the abortion decisions. Cady died of a heart attack in November 2019.
Governor Reynolds made clear after the 2019 legislation passed that there could be more to come:
Speaking to a conservative religious group that led the charge to remove three justices following the same-sex marriage ruling, Reynolds said: “Elections matter, and fortunately the tide is turning in Iowa’s Supreme Court. In two short years we’ve moved the needle from left to right. We may have been slowed down a bit by [the court’s 2018 abortion ruling], but I am here to tell you that we are not done. And let me assure you, I am in this fight for the long haul.”
Indeed, Iowa Republican legislators again in 2022 sought to change the balance of power on judicial nominating commissions, this time for trial judges. The 14 District Nominating Commissions consist of five public members appointed by the governor and five lawyer members elected by members of the Iowa bar who reside in the district, with the senior judge of the district serving as chair.
The proposed legislation would have retained senior judges as members of the district commissions but required that instead of the senior judges automatically serving as commission chairs that the chairs be elected by the commissions. Governor Reynolds vetoed the bill, saying in a veto message she preferred an earlier version that would have removed judges entirely from the district commissions because bill “does not resolve . . . serious concerns about the undue influence of judges on district court commissions.”
Iowa State Senator Julian Garrett, a Republican, said in an interview with Courthouse News that the original version of the legislation did not have enough votes to pass. “I would have preferred what we did at the state level,” which he sponsored, when “we took the Supreme Court justice off the commission.”
Garrett said he said he will try again to pass the bill that failed last session to remove judges from district commissions.
Garrett dismissed critics who say these legislative changes have reintroduced politics into the judicial selection process.
“I kind of chuckle at that claim,” he said. “There was politics all along.”
He said some members of the Iowa Supreme Court are not following the original intent of the Iowa Constitution. “They admit that they are substituting their own opinion, not the intent of the Constitution. That’s not right.”
Iowa legislators may be less eager to pursue changes to the Supreme Court nomination process, however, since all seven members of the current court have now been appointed by Republican governors – including five new members who replaced retiring or deceased justices who voted in the majority in the same-sex or abortion decisions.
Indeed, this newly constituted court in June reversed the 2018 decision that declared abortion a fundamental right under the Iowa Constitution.
Only one member of the court – Justice Brent Appel – dissented in full, saying he would affirm the Court’s 2018 holding “that a woman’s liberty interest in reproductive autonomy is a fundamental right under . . . the Iowa Constitution.” Appel retired the following month upon reaching the mandatory retirement age under state law.
State Senator Garrett said the Court appears now more committed to ruling based on the intent of the Iowa Constitution.
“It’s a little early, but I think our current Supreme Court is more inclined to follow the law and the intent of the Constitution.”
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