JUDICIAL MERIT SELECTION

AND RETENTION IN IOWA

Presented by Robert Waterman, Jr.*

4th Annual Corporate Counsel Forum

University of Iowa College of Law

October 1, 2010

__________________________________

* Robert Waterman, Jr. is President-Elect of the Iowa State Bar

Association and partner in the law firm of Lane & Waterman LLP,

Davenport

A. Five Ways We Pick Judges in the U.S.

1. Partisan elections

2. Nonpartisan elections

3. Election by state legislature• 8 states use only partisan elections• 13 states use only nonpartisan elections• 9 states use a combination of methods

4. Appointment by Governor• 7 states appoint judges

5. Merit system (Iowa)• 14 states and D.C. use merit selection

Who screens

Selection

Who appoints Retention election? Length of

term

State Judicial Nominating

Commission

Governor Yes, after first year and every successive term 8 years

State Judicial Nominating

Commission

Governor Yes, after first year and every successive term 6 years

District Judicial Nominating

Commission

Governor Yes, after first year and every successive term 6 years

County Magistrate

Appointing

Commission

District Judges in

that judicial

elective district

Yes, after first year and every successive term 6 years

County Magistrate

Appointing

Commission

District Judges in

that judicial

elective district

Yes, after first year and every successive term 6 years

County Magistrate

Appointing

Commission

District Judges in

that judicial

elective district

Yes, after first year and every successive term 6 years

County Magistrate

Appointing

Commission

District Judges in

that judicial

elective district

No, Magistrates must re-apply every term and

be re-appointed by the Magistrate

Appointing Commission

4 years

B. How it Works in Iowa1. The Judges

2. Three Types of Merit-based Nominating Commissions

Commission Which judge

positions does it

screen?

Which judge

positions does it

appoint?

Membership Length of term of

Commissioners

State Judicial

Nominating

Commission

Supreme Court

Justices; Court of

Appeals Judges

None Chair, who is most senior

supreme court justice who

is not the chief justice, 7

members appointed by

governor, 7 members

elected by Iowa State Bar

Association

6 years

District

Judicial

Nominating

Commission

District Judges None Chair, who is most senior

district court judge in

district, 5 members

appointed by governor, 5

members elected by local

bar association

6 years

Magistrate

Appointing

Commission

District Associate

Judges, Associate

Juvenile Judges,

Associate Probate

Judges

Magistrates Chair, who is chosen by

chief judge in the district,

up to 3 non-lawyer

members appointed by

county board of

supervisors, up to 2

attorneys elected by

attorneys in that county

6 years

3. Gender-Balanced and Partisan Requirements for Commissions

• State law requires gender balance

• State law requires the commissioners be chosen without regard to political affiliation--no requirement that commissions be bi-partisan

4. Training Program For Commissioners:

• Written materials – provided in 3-ring notebook to each Commissioner

• All-day training program – see agenda for past program

Agenda

9:30–10 a.m. Registration

10-10:15 Introductions, Welcome and Overview – Judge Michael J. Streit, Iowa Court of Appeals; U.S. Magistrate Judge Celeste F. Bremer, United States District Court, Southern District of Iowa; Seth S. Andersen, Director, Citizens Center for Judicial Selection, American Judicature Society

10:15-11:15 Applicant Questionnaire Review – Small group exercise – articulate selection criteria and rank applications

11:15-11:45 Group Reports on Questionnaire Exercise – Each group reports its top two applicants and discusses the criteria used to rank the applicants

11:45-12:30 Lunch

12:30-1:20 Characteristics and Qualities Most Important for Judges – A Discussion of Knowledge, Skills, Experiences – Justice Jerry L. Larson, Supreme Court of Iowa; Judge Timothy J. Finn, Second Judicial District; Judge Linda R. Reade, Fifth Judicial District

Training Program for Iowa Judicial Nominating CommissionersDes Moines Botanical Center909 East River Drive, Des Moines

Agenda - Continued1:20-1:30 Break

1:30-1:50 Processing Judicial Nominations in the Governor's Office –Governor Thomas J. Vilsack

1:50-2:40 Issues in Interviews – Seth Anderson• Appropriate and Inappropriate Questions• Americans with Disabilities Act• Bias Issues• Structured Interview Question (asked of all applicants)• Tailored Questions• Private/Group Interviewing• Most Effective Questions

2:40-2:50 Break

2:50-3:30 Deliberations and Voting Procedures - Seth Anderson• General Discussion• Time for Deliberation• Application of Evaluative Criteria• Voting Methods

5. Confidential Questionnaire and Application Process

• Detailed written questionnaire

- 28 general categories of information sought

- Numerous multi-part questions, plus 20

sub-categories

Examples of Questions:11. Describe three of the most significant legal matters which you have personally handled. . . . give

the citations if available. . . .a capsule summary . . . a succinct statement of what you believe to be the particular significance of it. Identify the party or parties whom you represented; describe in detail the nature of your participation and its outcome. State as to each matter . . .

13. Are you now an officer, director, partner, sole proprietor, or otherwise engaged in the management of any business enterprise or nonprofit organization? If so, give details, including . . .

20. Furnish at least two examples of legal articles, books, briefs, or other legal writings which reflect your personal work. Indicate the degree to which they represent your personal work.

22. List all bar associations and professional societies . . .

23. Describe any participation you have had in pro bono legal activities and include dates.

24. Describe your activities in organizations other than bar associations or professional associations or professional societies, including civic, charitable, religious, educational, social and fraternal organizations.

25. List not more than five names and addresses of those persons who are in a position to comment upon your qualifications for judicial position and of whom inquiry may be made by members of the Commission without embarrassment to you.

6. Phone Calls, E-mails and Letters of Support

• It is common for commissioners to receive numerous phone calls and emails in support of candidates

• Many applicants submit letters of support

7. Independent Research by Commissioners

• Premise

• Fastcase

• Google

• Facebook

8. Interviews

• Many commissioners conduct private one-on-one interviews

• Commissioners may conduct group interviews of each candidate

• The written training materials provided to Commissioners include an exhaustive list of suggested questions

9. Confidential Deliberations

• Each commissioner receives copies of the applications and writing samples in advance

• Court Administrator reports on any criminal records or ethics complaints

• Each applicant's submission is carefully considered and debated

• The meetings are confidential to facilitate an open discussion of candidates

C. Arguments in Favor of Merit-Based Selection:

The main arguments in favor of merit-based selection systems rather than judicial elections are:(1) Qualified Judges. By selecting judges through non-partisan commissions,

emphasis placed on the qualifications of judges, rather than political stands. Thus judges are chosen for their "experience, legal skills, knowledge, and judicial temperament," rather than their political affiliations.• U.S. Chamber of Commerce consistently ranks Iowa’s judiciary among the top five state court

systems for impartiality and competence.

• States with court systems ranked high for being fair and impartial are good for business and attractive for businesses looking to relocate there.

(2) Judicial Independence. Merit-based systems promote judicial independence, by avoiding the politics including fundraising, of elections.

(3) Judges' Role in Government. While it makes sense for policy-makers like executives and legislators to listen and respond to the political opinions of their constituents, judges are charged with upholding the law, whether their decisions are popular or not.

(4) Money. Judges who run for election must spend large amounts of time and money that appointed judges do not have to spend. In addition, judges may be influenced by election campaign contributions, which will prevent them from being the impartial decision-makers that they must be.

D. History of Retention Elections in Iowa Since 1962:

• In 1976, a judge from Clinton become the first judge in Iowa to lose a retention election.

• In 1978, a judge from Cedar Rapids and a judge from Marshalltown lost retention elections.

• In 1994, a judge from Des Moines became the fourth and last judge to lose a retention election in Iowa.

• No justice of the Supreme Court or Judge of the Court of Appeals has ever lost a retention election.

• This year, 74 judges will stand for retention statewide, including three justices.

E. Public Outreach

• In every election year since 2000, the Iowa State Bar Association has asked Iowa lawyers in a Judicial Plebiscite to evaluate each judge on the ballot on a wide range of attributes. As a result, the citizens of Iowa have easy access to information about how individual judges are doing their jobs. The results of this years Plebiscite are being released today (October 1).

• The Iowa Judicial Branch offers a voter guide with a biography of all judges running in the retention election. See www.iowacourts.gov.

• Former U.S. Supreme Court Justice Sandra Day O'Connor has made it a personal advocacy priority to eliminate judicial elections in all states, Justice Ruth Bader Ginsburg has joined her in that mission.

• Iowans for Fair & Impartial Courts was formed in 2010 to help educate the public on the judicial merit selection and retention process in Iowa. For more information, see www.learniowacourts.org. IFIC is supported by the Iowa State Bar Association.

E. Public Outreach - continued• Dean Allan Vestal, Drake University Law School, in a speech to 300 business, labor and

civic leaders in Des Moines on September 8, 2010, identified five propositions for this fall's judicial retention vote:

1. Our judicial retention vote is an extraordinary and limited tool to remove unfit judges.

2. Our judicial retention vote is not a forum to overturn decisions of the courts; the fitness determination is not a proxy to re-litigate individual cases or to bring pressure upon the courts as to future cases.

3. Our judicial retention vote is so important, and the risk of mischaracterization is so great, that we must speak fairly, with precision, and in utmost good faith on the question of the judiciary's role, and reject the calls of those who do not meet this high standard.

4. Although our judicial retention vote is not the proper forum for changing the outcome of cases, judicial decisions of constitutional note are not beyond challenge using appropriate means.

5. Misuse of our judicial retention vote and the politicization of our courts will cause serious damage to our system of justice.

Please support Iowa’s system of merit selection of judges and vote on November 2!