Gambling on a political judiciary

Editor’s note – Clarification of Iowa State Bar Association’s role added per information provided to GCNO by that group.

~by Victoria Riley, GreeneCountyNewsOnline

State senator Jerry Behn surprised people at Coffee and Politics a week ago when he announced that the three branches of Iowa government – executive, legislative and judicial – are not equal according to the Iowa Constitution.

Behn, a Republican, was responding a question about the legislature’s effort to change the process of nominating potential judges. The Republican-led legislature wants the governor to appoint all members of the judicial nominating commission, the group that creates a short list from which the governor names judges. Currently, all licensed attorneys in Iowa have an opportunity to vote on attorneys to fill half the positions on the commission. That election is nonpartisan. Gubernatorial appointees fill the remaining positions. 

Republicans argue the current process gives too much power to non-elected persons.

At Coffee and Politics Behn said that “activist judges” have made the Iowa Supreme Court a political body, and he complained, “I even heard our chief justice mention three separate but equal branches of government in the state of Iowa… Nowhere in our constitution does it say ‘equal,’ but he (chief justice Mark Cady) said it.”

Behn is correct – the Iowa Constitution establishes three separate branches and names the responsibilities of each. The word “equal” isn’t there.

But, that word isn’t used in the United States Constitution, either. Maybe Behn knows that, or maybe he doesn’t.

The U.S. Constitution, like the Iowa Constitution, lists responsibilities of each branch but doesn’t decree they’re equal.

It also doesn’t establish judicial review, the power of the court to strike down federal and state laws determined to be contrary to the Constitution. It was a Supreme Court decision in 1803, Marbury v. Madison – (perhaps that sounds familiar… remember U.S. history class in high school?) that established judicial review.

When the Iowa Constitution was ratified in 1857, the principles of judicial review and an equal and independent judiciary were already in place, despite not being mentioned in the U.S. Constitution.

Judicial review isn’t a guarantee that laws will be considered through a constitutional lens, though. Deference, called “the darkest domain” by Daniel J. Solove1, is an overarching principle that judges shouldn’t second-guess decision-makers or impose their own judgment about the wisdom of a policy or law.

(The judges labeled as “activists” are those who second-guess decision-makers and come to a conclusion different than that of the decision-makers.)

It’s the principle of deference that makes it crucial that attorneys at large, who represent vastly different viewpoints but have knowledge of the skills and demeanor of potential judges, have a voice in the nominating process. Without a non-partisan voice, the court could very easily, either by ruling or by deference, become nothing more than a rubber stamp for the legislature.

A rubber stamp judiciary wouldn’t serve Iowa well, particularly when one party controls the Statehouse and the governor’s office. It wouldn’t matter if it were Republicans or Democrats in control. The judiciary needs to remain apolitical.

1 Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L.Rev.941 (1999).

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