GOP’s legislative war on the Judiciary

At least three bills have been introduced this legislative session by House Republicans that deal specifically with the power or make up of Iowa’s judicial branch.

The courts have long been a political punching bag for conservatives who fear judges “legislating from the bench,” but since last April’s Iowa Supreme Court decision legalizing same-sex marriage, Republican anger towards the courts in Iowa has reached a new level.

The Iowa Supreme Court building in Des Moines.

The first bill was introduced by state Rep. Jason Schultz, R-Schleswig, who has drawn fire already this year for co-sponsoring legislation to remove protections for gay, lesbian and transgender students from an anti-bullying law passed in 2007. Schultz’s bill, House File 2313, would make it illegal for judges to use judicial precedent, case law or international law as a basis for rulings. They could only use the state and federal constitutions to decide cases, and only the Federalist Papers to interpret the constitutions. Violation would lead to impeachment.

Mark Kende, a law professor and director of Drake University’s Constitutional Law Center, said the bill likely violates separation of powers, since the legislature is intruding into a judicial realm established by the Iowa Constitution. The bill also dictates an “originalist approach to constitutional interpretation.”

“It’s as if conservatives get to say no liberal decisions,” Kende said. “It would be just as objectionable if liberals said no conservative decisions. We want an independent judiciary.”

The strangest part of the bill, Kende said, is its ban on legal precedent.

“What’s truly bizarre is the idea that the bill would ban the use of case precedent as well, one of the core aspects of constitutional interpretation endorsed and acknowledged by many conservatives,” he said. “The bill might also raise some due process and equality issues.”

Schultz did not respond to requests for comment.

Rep. Rod Roberts, R-Carroll, introduced House Joint Resolution 2012, which would split the state into districts and appoint Supreme Court Justices from each, with one at-large seat. It would require justices to continue to live in the district as long as they sit on the court.

Roberts, who is running for governor, told the Cedar Rapids Gazette that the bill is designed to make the court more responsive to the people.

Rep. Kent Sorenson, R-Indianola, introduced House Joint Resolution 2013, which calls for the direct election of Supreme Court Justices. The Iowa Bar Association dismissed the idea, saying the current method of choosing Justices relies on the merit system and helps protect judicial integrity. And because Justices are up for retention votes every 8 years, the public get input on the process.

All three bills are dead for the year, as they failed to pass through a committee before Friday’s legislative deadline. But the issue will definitely come up again during the fall campaign. Roberts has publicly said he favors voting out the three Supreme Court Justices on the ballot this year, and Sorenson is running for the state senate against incumbent Democrat Staci Appel, who’s husband Brent is an Iowa Supreme Court Justice who is not up for retention this November.