Merit-Based Judicial Selection Is Threatened, Here and Throughout the Country

June 8, 2021

Faithful readers of our Justice at Stake series know we’ve chronicled the growing tension between dark money special interests and judicial independence. What started as a drip more than 20 years ago is now a Noah’s Ark flood of spending by mostly (but not exclusively) business and conservative groups to achieve their narrow political goals. By mounting political-style attack campaigns against judges who follow the law rather than a political or religious worldview, these groups are causing real harm to state and federal courts, as research makes so depressingly clear.

The “Gold Standard” Is Under Attack

Conceived in the early 1900s and first implemented in Missouri in 1940, merit-based judicial selection – considered the “gold standard” for selecting state supreme court justices – has been remarkably successful at bouncing politics out of judicial selection in Iowa and the 20 other states where it is used today. But times have changed and super-charged partisan politics has become the norm. While our merit-based judicial selection system is better than all known alternatives, it is not immune to partisan subversion.

In Iowa …

Many mark 2010 and a million-dollar smear campaign directed at three well-qualified Iowa Supreme Court justices for their decision on marriage equality as the opening volley in the new era of partisan attacks on judges standing for retention. Successful in hoodwinking voters in 2010, the same extremist groups were defeated in 2011, 2012, and 2016 despite new rounds of vicious and baseless political attacks.
Then in 2019, as many of you know, Gov. Kim Reynolds and conservatives in the state legislature weakened another merit-based safeguard by tipping the balance on Iowa’s statewide nominating commission in a blatant power grab.

In other merit-based states …

Numerous other narrow-minded interest groups and self-serving politicians have spearheaded similar assaults on merit-based judicial selection systems and retention elections. Recent examples include:

  • Political groups targeted three Florida Supreme Court justices in 2012 for votes on the Affordable Care Act and the death penalty.
  • Tennessee’s lieutenant governor led an effort in 2014 to unseat three justices, hurling inappropriate claims of being “soft on crime” and “anti-business.”
  • Gov. Sam Brownback exploited the retention election of two Kansas Supreme Court justices to win reelection in 2014, using tactics that were called “beyond disgraceful” by a local prosecutor. Then Brownback and his supporters tried to use a series of decisions involving public school funding to jam through a court packing plan in 2016.
  • A group calling itself Citizens for Judicial Fairness was anything but fair in spending $2.2 million this past November on TV ads attacking Illinois Supreme Court Justice Thomas Kilbride, making him the first Supreme Court justice to lose a retention election in state history.
  • This year, the Governor and Republican legislators in Montana are working overtime to eliminate that state’s 50-year-old nominating commission and hand complete control for judicial appointments to the Governor in what one observer called “reverting back to the bad old days.”

Boot politics out of our courts!

Building a Merit Selection System for the 21st Century

Iowa’s merit-based judicial selection system has taken a few direct hits as outlined above. And, scheming politicians and the special interest groups that support them will continue these campaigns for injustice as long as they still work.

Yet, our system has endured, and it will continue to do so if we adhere to the principles established in the Missouri Plan and wisely adopted by Iowa voters in 1962. To prevent any further backsliding, we should restore Iowa’s system back to the “gold standard” by reversing the Governor’s partisan control of the state-wide judicial nominating commission. Our first priority must be to make sure the selection of judges is as impervious to political pressure as possible, regardless of which party holds the Governor’s office.

But we can’t stop there. We must also consider additional measures that will safeguard Iowa’s system from future manipulation and abuse for political gain. Several prominent organizations and legal scholars have proposed added protections for merit-based selection, including a comprehensive plan from the Brennan Center for Justice. These proposals are based on minimizing the role of politics on nominating commissions while insulating retention elections from partisan manipulation.

While some of these ideas won’t make sense for Iowa, leaders from both sides of the political spectrum should think boldly about how to restore and safeguard the principles of the “gold standard” of judicial selection that Iowa voters established in 1962.

Team Justice Not Politics