The Case for Reform
by Rep. Steve Holt (R-Denison)
The current system used in Iowa to place judges and justices on the bench is a merit-based system commonly referred to as the “Missouri Plan.” Under this system, Iowa has 14 district court commissions and a state commission. These commissions select nominees to submit to the governor to fill judicial vacancies. For the Supreme Court, three nominees are given to the governor; for district court vacancies, two nominees are advanced. The governor must select one of these nominees within 30 days of receiving it. If the governor does not make the selection within 30 days, the chief justice of the Iowa Supreme Court makes the selection.
This system has been in place since the early 1960s, when this model became popular in a number of states. Prior to this system, Iowa placed judges on the bench by direct election. Direct election of judges fell out of favor as ethical issues related to judges having to fundraise and then hear cases in which donors to their campaigns were involved, began to arise.
The individuals on the commissions that make the recommendations to the governor are selected for the commissions using a system in which the governor chooses half, which must then be approved by a super-majority in the Senate, and by half being elected by attorney members of the bar in Iowa.
When the Missouri Plan was being debated in 1962, there was concern that such a system would give too much power to “elite lawyers,” since attorneys would be electing other attorneys to these commissions with no oversight or accountability to the people. In fact, in order to get it passed, a rarely used escape clause was placed into law that required the plan to be used until 1973 but could be changed by the legislature after that.
Several states that have used the Missouri Plan are now debating changes. Tennessee has totally moved away from this plan, and even Missouri is considering changes. The legislation being considered in Iowa would give more voice to the people through their elected officials, regardless of political party.
Why is change necessary? In the current system, attorneys are electing other attorneys with no oversight or accountability to the people. It has also become clear that very few attorneys are participating in the process. In 2018, over 7,000 lawyer members of the bar were eligible to vote for commissioners. Only 18.45 percent of attorneys eligible to vote actually voted and participated in the process. This means that less than one-half of one percent of the people of Iowa, those being attorneys, had a voice in this part of the process.
The concerns about the current system do not stem from a specific case or court action, but rather from a belief that a tiny number of lawyers electing other lawyers to these commissions without oversight is inappropriate and does not represent the voice of the people.
Elected representatives of the people, from both political parties, accountable to the voters every two or four years, should appoint members to these commissions, not a tiny group of attorneys. This gives greater voice to the people through their elected representatives and provides a measure of oversight that is non-existent in the present system, in which a few attorneys are electing other attorneys with no additional approval process for oversight. Contrast this with the governor’s appointees, which in the present system must be approved by the Senate.
The deciding vote and chair of these commissions is currently the senior judge or justice, and they are voting on who will join them on the court. This process should also be changed, because this creates the opportunity for undue influence by the judge or justice over other members of the commissions. When the judge or justice is removed from the process and the chair is appointed by other means, this lessens the possibility of inappropriate influence over attorneys who must argue cases before these judges and justices.
One of the arguments being made by attorneys who will lose a small measure of power should these changes be implemented, is that we are “politicizing” the process. Anyone who has observed or is involved with judicial selection knows it is already highly politicized. Case in point: in 2011, three justices had to be replaced on the Supreme Court. Nine nominees were advanced to Governor Branstad. Only one female was advanced; a liberal law professor who had never practiced law in Iowa and had been admitted to the bar on the day of her nomination. This is inexplicable, given that there were highly capable female judges serving throughout Iowa’s court system at the time. Apparently, they were not advanced for purely political reasons, as those in the system attempted to force the Governor’s hand in the selection process.
The merit system is not changed in our proposals and attorneys remain a key part of the process. Our bill requires that at least half of the commissioners must be attorneys, they just don’t get to vote one another on to the commissions, with only a tiny number of attorneys bothering to even participate in the process.
The changes to the judicial nomination process in HSB110 would result in greater transparency, greater accountability to the citizens of our state, improves the integrity of the system through a more public process, removes the potential of undue influence or pressure resulting from a judge or justice being chair of a commission, all while maintaining a strong attorney presence and the merit system of selection. Our system works best when the power resides with the people, as envisioned by our founders. HSB110 would return a measure of power to the people in the selection of judges and justices.
Steve Holt is the Iowa House District 18 representative