Legislators need to protect the courts from politics

by Jennifer M. Zupp

On Wednesday, Senate Study Bill 1101 and its identical companion, House Study Bill 110, passed through the full judiciary committees of both chambers of the Iowa Legislature. As written, the bills should be completely rejected.

These bills seek to change the manner by which lawyers who sit on Judicial Nominating Commissions across the state are chosen to serve. Judicial Nominating Commissions are groups of people who consider applications of individuals to become a judge when there are vacancies. For vacancies at the district court level, where you have trials, from all of the applicants, two names are sent to the Governor from which he or she makes the ultimate selection. At the “state level”, that is, the Iowa Court of Appeals and the Iowa Supreme Court, three names from the pool of applicants are submitted to the Governor. In all, there are 14 district court judicial nominating commissions and one state judicial nominating commission. Denison is in the Third Judicial District.

Having personally served, and continue to serve, on the Judicial Nominating Commission during the selection of the last three district court judges in our district, I can assure you that the process is time-consuming, exhaustive, all-volunteer and usually, thankless. We read every application, countless letters of recommendation for applicants, conduct our own interviews of applicants and then, as a group, we interview them all, in person. We then take a “blind” vote and those with at least a majority of the votes are the ones whose names are sent to the governor. If no one has a majority of the vote, the lowest vote-getters are eliminated, and we vote again. We do this until two come out on top with more than a majority and those two names are sent to the governor who then makes the ultimate choice.

Never once during this process have I felt any of my fellow commissioners were looking for a judge that matched their own ideologies. We never asked a candidate if he or she was pro-life or pro-choice, pro-gay marriage or anti-gay marriage, religious or atheist. We did not care what the “political pulse” was in Iowa at the time we searched for the best candidates for the job because we know the pulse always changes, as it should. Instead, our commission sought people who had relevant experience, if possible, solid and hard work-ethic, broad support from their peers in a variety of settings, a good reputation amongst judges and colleagues, passion to serve the greater good, and beyond all else, an inherent understanding that the job requires them to set-aside their personal biases and ideologies and give every person or business who appears before the court a fair shake as best as they can, especially when the decision will not be “politically popular.” We call this “merit selection” and it is a process we have followed in Iowa since 1960.

Instead of “merit selection,” the Republican bill interjects politics where it does not belong. Instead of lawyers in the district voting for other lawyers from the district to serve, Republicans propose to instead have the majority and minority leaders in the House and Senate each pick one commissioner at the district court level and two each for the state level. The majority and minority leaders, of course, are not directly accountable to voters in our community.

I can certainly understand the argument that it would be good if the lawyer-members were somehow more accountable to the people. I have no problem with that. But placing the decision-making power exclusively in the hands of four people in the legislature has zero direct-accountability for the people in our community. At least when I was voted on by my colleagues to serve on the commission, the entire bar in our district had a say in my election. With the new bill, however, no one in our district would have a direct say in whether or not I should continue to serve, or who else would serve in our district.

If we are going to change the system for “accountability’s sake,” let’s make it so that our own House and Senate representatives are the ones choosing the lawyer-commissioners for our district because at least they are actually accountable to the people and stand some chance of actually knowing the lawyers whom they might select to serve. Alternatively, if we truly want accountability, let’s let the Iowa voters directly decide on the ballot which lawyers should serve on the commissions and even which lay members serve on the commissions. As another alternative, we can continue the process of allowing lawyers in the district to vote for other lawyers to serve on the commission (because, let’s face it – we know who is lazy and who will do the hard, thankless work) but have the lawyers’ selection be confirmed by the legislature or governor. At least these methods would provide more accountability and oversight. Putting all of the power in the hands of just a few, as proposed, all but eliminates real accountability. If a “bad” lawyer is picked to serve, our own representatives can pass blame onto the majority and minority leaders and meanwhile, we, the people negatively affected, have no ability to vote those people out.

Whether you are reading this and are pro-life or pro-choice, pro-gun or pro-gun-safety, religious or atheist, black, white, young or old, rich or poor, the victim or the accused, protecting your right to a fair, neutral, independent and impartial judiciary is fundamental to the American system of justice. When I go to trial for a mother whose son was killed by a drunk driver, or for the victim of sexual abuse, I want to be able to look my clients in the eyes and tell them not to worry, for they have a judge that was chosen based on his or her merit. Instead, with this new law, as written, I fear I will be telling them, “I’m sorry. This judge was picked by Republicans/Democrats, so you are most likely going to lose.” That is just plain wrong.

I strongly encourage our elected leaders to put aside their ideologies and think about what is best for the people long-term. Think about what happens when the political climate changes in future election cycles. Either leave the system alone or make it totally accountable to the people.

Jennifer M. Zupp is an attorney with Zupp and Zupp Law Firm, P.C., of Denison

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