Iowa Gov. Terry Branstad almost exclusively has appointed fellow Republicans to commissions that nominate people to become Iowa judges — a move one former Iowa Supreme Court justice called “destructive” to public perception of judges as impartial.

Iowa governors aren’t required to balance the politics of judicial nominating commission appointees, and past Democratic governors favored their own parties as well.

But Branstad hasn’t chosen a single Democrat to nominate Iowa judges since he took office in 2011, a Gazette investigation shows, and he has left almost a third of his judicial nominating appointments vacant.

“If appointments are political appointments, it sends a message they are playing a political role, which is not good for public confidence,” said Marsha Ternus, who served on the Iowa Supreme Court from 1993 to 2010, the last four years as chief. “It feeds into the perception judges are just politicians in robes.”

Politicizing of judiciary

Judges hand down prison sentences, decide civil cases worth millions and award custody of children, among other duties. To remain impartial, Iowa judges don’t attend political rallies, donate money to campaigns, put up candidate yard signs or caucus, State Court Administrator David Boyd said.

“Judges are not part of the political process,” he said.

And yet in Iowa and nationwide, partisan politics increasingly are evident in the judicial branch.

U.S. Senate Republicans, including Iowa’s Chuck Grassley, earlier this year refused to hold confirmation hearings on President Barack Obama’s nominee to the U.S. Supreme Court. They said they wanted the next president to select a new justice — the subtext being they wanted a more conservative pick.

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In Iowa, voters in 2010 ousted three of Iowa’s Supreme Court justices, including Ternus, for being part of the unanimous 2009 decision that legalized same-sex marriage. Still, other justices who have come up for retention votes since 2010 have kept their seats.

“Every state is seeing it,” Ternus said about politicizing of the judiciary. “It’s a very troubling trend.”

Picking Iowa judges

Iowa has 14 District Judicial Nominating Commissions that interview district court judge applicants and nominate two finalists, whose names go to the governor. The governor must pick a judge from the finalists.

To make up an 11-person commission, the governor appoints five laypeople to the unpaid positions; lawyers in the district elect five peers to six-year terms; and the district’s most senior judge leads the commission. The panel is activated when a local bench has an opening.

The State Judicial Nominating Commission, which nominates Iowa Supreme Court justices and Iowa Court of Appeals judges, has eight governor-appointed members, eight lawyers and the most senior justice. This group, whose members are subject to state Senate confirmation, sends three nominees to the governor for each opening.

Of the 78 positions Branstad is charged with filling on judicial nominating commissions, he’s named only 53 people, according to the state’s Boards and Commissions website. This means 32 percent of the appointments were vacant as of mid-November.

All 53 appointees are Republicans.

Breakdown of Iowa's judicial nominating commissions Shown are the political affiliations of the judicial nominating commission members. Of the 78 positions, Branstand has filled 53 of them. All of his appointees have been Republicans.

“There is no requirement at either the state or district nominating commissions for political balance,” Boyd said. “The governor can appoint whomever he wants. There’s only a requirement on gender.”

Iowa Code Section 46.3 says the governor “shall appoint five eligible electors” for each district judicial nominating commission. Branstad has not done that so far, with many of the vacancies lasting for several years.

Boyd said it is not typical to have so many vacancies on judicial nominating commissions.

“We would always hope to have a full complement of nominating commissioners,” he said.

Branstad and his staff declined to say specifically why he hasn’t appointed any Democrats to the commissions.

“The governor takes his responsibility very seriously to select outstanding citizens in Iowa who will work hard to select fair, impartial judges, regardless of political affiliation,” spokesman Ben Hammes said in an email. As for the vacancies, Hammes said it’s hard to keep up.

“There are constantly vacancies on our hundreds of boards and commissions that pop up and our staff works diligently to select the best citizens to serve. As you know, there are gender and political party requirements (for some boards) that must be met as well,” Hammes said.

He said Branstad wasn’t in a hurry to name people to the commissions because the judicial branch had temporarily frozen new hires to save money.

“Now that the court has opened up their freeze — we are appointing to the commissions,” Hammes said.

How political is the process?

Tim Semelroth, a Cedar Rapids defense lawyer, served on the Sixth Judicial District Nominating Commission from 2006 to 2012 — a period when it faced five openings on the local bench.

“We had a lot of judges retire during that period,” he said.

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Semelroth did not know whether his peers were Democrats or Republicans and it didn’t seem to matter, he said. The group spent most of its time discussing candidates’ work ethics and temperaments.

“I don’t think partisan politics ever came up,” he said. “I never asked a judicial candidate about hot-button political issues.”

But commission members also have an opportunity to meet privately with judicial candidates, Semelroth said, and he does not know how often politics plays a role in one-on-one interviews.

State Judicial Nominating Commission members in 2013 quizzed applicants for an Iowa Court of Appeals opening about religion and marriage, topics that shouldn’t have bearing on the applicants’ judicial qualifications, the Des Moines Register reported.

One commission member, Scott Bailey, asked an applicant whether she was breaking her marriage vows because her husband was working in another state, while a second commissioner, Elizabeth Doll, asked an applicant’s methodology in picking a church.

Neither Bailey nor Doll remain on the panel.

Tammy Kobza, who serves on the District 3B nominating commission, fought to remove Ternus and other justices after the court’s same-sex marriage ruling.

“Stopping judicial activism seems to me to be a significant way we can turn the tide of moral decay and loss of our liberties,” Kobza wrote in her application for the post, according to the Quad-City Times in 2012.

Bailey, Doll and Kobza were all Branstad appointees.

always so partisan?

Former Gov. Chet Culver, a Democrat who served from 2007 to 2011, had a better record than Branstad when it came to filling judicial nominating commission appointments. In November 2010, there were only 12 vacancies among the 78 appointed positions at the district and state level. That was a 15 percent vacancy rate, compared with Branstad’s 32 percent.

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Culver favored Democratic appointments, but in November 2010, there were five Republicans and nine independents serving on judicial nominating commissions, according to a version of the state’s website from Nov. 7, 2010.

Branstad complained about the leftward lean of the State Judicial Nominating Commission in an Oct. 7, 2010, gubernatorial debate with Culver. The commission — 15 members at the time — had 11 Democrats, two Republicans and one unaffiliated member.

Proof in the pudding

Do governors who appoint judicial nominators of their own party hope it translates to nominees who mirror their ideologies? That’s what Ternus, the former Iowa Supreme Court chief justice, wondered.

“In a way, the proof is in the pudding,” she said.

Branstad, who served as governor from 1983 to 1999 and again since 2011, has appointed 53 percent of Iowa’s 130 judgeships at the district level, Court of Appeals and Iowa Supreme Court.

The remaining judges were named by Democrats: Culver appointed 31 and Tom Vilsack, who served as governor from 1999 to 2007 before being named U.S. Agriculture Secretary, named 30.

“Their legacy is the judges they appoint to the bench,” Boyd said. Even if the political tide shifts with an election “you can’t change people who are serving on the bench.”

Voters have the ability to vote a judge or justice off the bench during periodic retention elections, but that is rare.

To find out whether Iowa’s past three governors have appointed more judges of their own political parties, The Gazette requested political affiliation of Iowa’s 130 judges from the Iowa Secretary of State’s Office. The office couldn’t match all judges with voting records because of common names or because the judicial branch doesn’t always list a judge’s home city. But 111 of 130 judges matched.

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Of those 111 judges, 38 percent are Democrats, 31 percent Republicans and 31 percent are registered as no party.

Vilsack had the highest share of appointed judges from his own party at 57 percent.

Of Culver’s 25 judicial appointees for whom party affiliation is known, 48 percent were Democrats.

Branstad had the lowest share of registered Republicans among his appointees at 44 percent.

Should we change the system?

Ternus and Semelroth, the Cedar Rapids defense lawyer, think Iowa law should require political balance among appointments to judicial nominating commissions.

“Political diversity would ensure having a diversity of viewpoints,” Semelroth said.

When governors choose nominators who are all from their own party, it creates the impression of bias, Ternus said. “It’s the perception this is happening that is also destructive.”

Others — including Branstad — have called for eliminating judicial nominating commissions altogether, allowing the governor to nominate judges who would then be subject to Iowa Senate confirmation.

Patrick Grady, chief judge of the Sixth Judicial District, said he has never seen politics play a role in the districts’ nominating commission and doesn’t think Iowa should change the law.

“We could end up with something worse,” he said. “Be careful what you ask for.”

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Continue Reading: Read the sidebar story breaking down the political affiliation of Gov. Branstad's other state board appointments: Iowa board appointees lean Republican, from central Iowa.

l Comments: (319) 339-3157; erin.jordan@thegazette.com