Jerry Foxhoven: Our judges are “unelected” for a reason: to get politics out of the protection of fundamental rights. -promoted by Laura Belin
As a lawyer, I am getting tired of hearing Iowa’s Republican legislators complain about Iowa’s “unelected” judges. Every time they disagree with a decision of a court, they insinuate that, because judges are not elected in Iowa, they are not reflecting the will of the people and therefore elected officials need to reign them in. Such a response shows that these elected officials just don’t understand basic civics.
Shortly after the last election, incoming U.S. Senator Tommy Tuberville, a Republican from Alabama, said: “Our government wasn’t set up for one group to have all three branches of government — wasn’t set up that way.” Tuberville continued, saying incorrectly: “You know, the House, the Senate, and the executive.” Both the U.S. Constitution and the Iowa Constitution were deliberate when they created a checks and balance system of government including an unelected branch called (I will clarify this for Tuberville’s benefit): the judicial branch.
Both constitutions (state and federal) created an independent, unelected branch of government and made it very difficult to amend the constitutions in order to prevent basic human rights and protections from being altered just because the public’s fancy has temporarily changed. It was also designed to provide some stability in the day-to-day dealings between citizens and the government. That was a conscious decision of our founders, and it has served us well.
Let’s look at how the system works. Laws are designed by elected officials who are supposed to reflect the will of the people. There are regular elections so that, if the public believes that the legislative branch does not reflect their will, they can vote them out of office and select a representative with an alternate view. Then, laws can easily be changed.
This system has worked well over the years and has resulted in changes in the controlling party from time to time. The only stumbling block is the damage done by large amounts of money now required for elections. This results in powerful individuals and companies (and their lobbyists) having more influence over legislation than the electorate.
The laws are enforced and implemented by the executive (president or governor) who are also elected officials. Again, if the actions of these officials do not reflect the will of the people, they can be voted out of office. The 2020 presidential election is a prime example.
This has also worked well in the past, resulting in a change in the party of the president or governor from time to time. Like the legislative branch, this branch of government is often unduly influenced by campaign contributions from powerful individuals and companies. That is why, for instance, large contributors have the ability to call the governor and have her send a “strike team” for COVID-19 testing for their companies while individuals and local governments are left waiting for help.
Our founders placed guardrails on this system by adding a third, nonpolitical branch of government. It is incredible that they had the foresight to recognize that at least one branch of government should be unaffected by money, influence, and the momentary “fancy” of the public. While it is true that judges are not elected, they are not totally unreflective of the public will. On the federal level, judges, while they serve for life once appointed, are nominated by an elected official (the president) and confirmed by an elective body (the U.S. Senate).
On a state level, judges are nominated by an independent body and appointed by an elected official (the governor). Iowa’s constitution added one additional provision requiring that judges be retained by the public in an election in order to continue serving. So, it is disingenuous to claim that there is no input by the public in the selection of our judges. One must recall the fact that three Iowa Supreme Court justices were “voted out of office” as a result of the Varnum decision on marriage equality.
Few can argue that this system has not worked well over the country’s and state’s history. The public has depended upon the courts to establish the “rule of law.” Even Donald Trump resorted to the courts to seek redress under his claim that the recent election was “rigged.” Not surprisingly, his faith in the judicial branch was shaken when they refused to “do him a favor” by ruling for him despite the fact that he appointed them to the bench.
These judges and justices adhered to their oath of office: they ruled impartially and without favor. As a result, there have been routine peaceful transfers of power. Society has been able to rely on a degree of stability in the basic freedoms guaranteed by our state and federal constitutions.
Republicans in the legislative branch (both state and federal) complain about “unelected judges” because those judges are not influenced by the exact thing that controls legislative agendas: money and the changing whims of society. It goes against everything that motivates Republicans in the U.S. Congress and the Iowa legislature in everything they do. They don’t like the fact that the judicial branch is doing exactly what it was designed to do: provide a barrier between politics and the Constitution.
In states where judges are elected, the results are predictably sad. Studies show that in states where judges are elected, lawyers often need to contribute to a judge’s election campaign in order to receive court appointments. Some states with the death penalty allow judges to override a jury’s decision not to impose the death penalty. Studies have shown that, in those states, as a judicial election approaches, judges are more likely to overturn a jury’s decision and impose the death penalty. In those states, people are literally dying because politics have been infused into the judicial branch.
Politicians have attempted to tamper with the safety valve offered by the judicial branch on both a federal and state level. On a federal level, Republican senators refused to even consider a nominee for the U.S. Supreme Court for nearly a year before a president was leaving office. Just four years later, the same group rushed through a nominee to the same office eight days before an election when 65 million people had already voted.
On a state level, Republican legislators have changed the makeup of the judicial nominating committee in order to tilt the balance toward the governor and even interfered with the term of the chief justice of the Iowa Supreme Court. In spite of it all, our judges (on both a state and federal level) have served with dignity, honesty, and impartiality. It is refreshing.
That leaves Iowa Republican legislators with only one recourse: amend the state constitution in order to limit the ability of the courts to provide justice. That is certainly their right. It is a difficult and lengthy process. This was done intentionally by our founders in order to protect the checks and balances built into our system. Voters have input into the process of a constitutional amendment.
It is one thing to propose to amend the Iowa Constitution. It is quite another to bash judges for following their oath of office and the responsibilities set forth in the constitution itself. Our judges have consistently shown integrity, impartiality and wisdom. I, for one, am glad that our judges are “unelected.” I wouldn’t have it any other way.
Jerry Foxhoven is an attorney, child advocate, former law professor, and former director of the Iowa Department of Human Services.
Top image: State Representative Steve Holt, the Republican floor manager, speaks on January 27 during the Iowa House debate on the state constitutional amendment on abortion. Screenshot from the official legislative video.