A Vanderbilt law professor who studies judicial selection suggests lawyers shouldn’t be part of the nominating commission or if they are they shouldn’t be elected by members of the bar.
Law Professor Brian Fitzpatrick said lawyers are viewed as a special interest group and may select judges who further their interests, whether it be political, financial or their ideology. He poses the question of whether members of the bar have too much control over who becomes a judge or justice.
Guy Cook, Des Moines attorney and member of State Nominating Commission, said lawyers aren’t a “unified special interest” group. Politics or party affiliation doesn’t influence search for best candidates, he said.
“Lawyers do have a common goal of ensuring judges are selected who are the best qualified, with highest integrity and greatest temperament, Cook said.”
Coleen Denefe, of Ottumwa, a lay member of State Nominating Commission, said lawyers are vital to the commission. They help evaluate writing samples of applicants’ opinions and rulings, and lawyers have gone before district court or appeals judge applicants and can say whether they are efficient and evaluate temperament.
“I think opening up election of lawyers to the public would be allowing special interest groups influence,” Denefe said.
This has made merit selection a hot topic of debate in Iowa, as well as other states, after last year’s retention election in which three Iowa justices – Chief Justice Marsha Ternus and associate justices Michael Streit and David Baker – were voted out because they were part of the 2009 ruling which legalized same-sex marriage.
Cook and Fitzpatrick have both participated in recent panel discussions regarding merit selection and the judiciary in Iowa and in Kansas.
The Kansas House on Friday passed a bill that would do away with a nominating commission all together in the appellate court process and replace it with one like the federal system – the governor would select judges and they would be confirmed by the state House and Senate.
Stephen Ware, University of Kansas Law School professor, testified before the House judiciary committee in support of the bill. Ware, also follows Fitzpatrick’s reasoning that lawyers have too much power on nominating commissions.
“In a democracy, a lawyer’s vote should not be worth more than any other citizen’s vote,” Ware, a Federalist Society member, told the committee last week.
There is also a similar proposed bill in Iowa that would change the merit system to be more like the federal system and some favor the idea of changing the way lawyers are elected to nominating commissions.
“Judges make decisions that affect many people, so why should lawyers get their say?” Fitzpatrick, also member of the Federalist Society, said. “Judges make laws at their discretion. Most laws are vague from constitutional to common law. Doctrines are invented by judges.”
Fitzpatrick conducted a study of merit selection focusing on his home state, Tennessee, and Missouri over a 13 year period, concluding in 2009. He wanted to see if merit selection was a better system, as proponents claimed because bar members focus on “merit” and less likely to select judges based on politics.
He admits in the study to being skeptical about politics being removed in the merit selection process because lawyers are just as likely to be concerned, if not more, with the how a judicial candidate would rule as a voter or elected officials.
“I looked at the allegations made about the legal profession who tend to pick more judges who are liberal,” he said. “I wanted to see if lawyers were more affiliated with the Democratic party.”
Fitzpatrick looked at judicial nominees in Tennessee and Missouri over the 13 years and found two-thirds of the nominees in Tennessee were Democrat and found in Missouri more of the nominees gave campaign contributions to Democrats.
Fitzpatrick said in the end he believes lawyers should be part of the commission but thinks how they are elected should be changed.
“If the governor and legislators pick the lawyers it should reflect preferences of the public because that who they work for but if it’s the bar who picks then it would reflect preferences of lawyers,” he said.
Tim Semelroth, a Cedar Rapids attorney and member of District Nominating Commission, said merit selection works well because the lay people bring their personal and professional experience and the lawyers bring their legal experience to choose the best candidates.
“I think it takes all those experiences to make the best selection,” Semelroth said. “If the governor appoints lay people and lawyers, how is that keeping politics out? The terms (for commissioners) are six years for a reason, so one particular governor can’t exert undue influence over the commission. The system is designed so all the terms are staggered.”
Denefe said politics have never come into decisions for nominations and she never knew the lawyers or other lay commissioners’ affiliations until the media reported that the majority were registered Democrats during the retention upheaval.
“In my five years and ll months I never felt anyone came with an agenda,” Denefe, who’s term ends in April, said. “Lawyers don’t line up to do this. I’m sort of relieved it’s at the end (of her term). I’ve never felt under the gun and under fire until this time.”
Fitzpatrick said only about seven states have power to select lawyer members without bar influence and Massachusetts is the only state that doesn’t have any requirements about having lawyers on commission.
Last year, Tennessee is the only state in recent times that has amended its law to say lawyer members will not be selected by the bar.
