Anti-choice Conservatives’ Latest Target: State Judicial Nominating Commissions

In many states, voters elect the judges and justices who sit on their courts, but there are still some states that have traditional appointment processes for judges. But who actually decides who should serve as those judges — those arbiters of state constitutions who make far more decisions that impact our everyday lives than the federal courts? In most of the remaining states, that task falls to groups known as judicial nominating commissions.

Though these commissions have largely been ignored for years, recent pro-choice rulings by state supreme courts have led to efforts by Republican state legislatures and governors to either reduce their influence in the selection of justices or increase partisan influence over the makeup of the commissions. That’s why it’s essential voters understand how to protect these commissions to ensure they will continue to advance jurists committed to the rule of law — not conservative outcomes like we’ve seen from many Trump-appointed federal judges.

Judicial nominating commissions are widely used to assist with appointments to state supreme courts by vetting candidates and submitting a short list to the appointing official, who is usually the governor. Currently, 21 states and the District of Columbia use nominating commissions to select Supreme Court justices, and a further six states use nominating commissions to help fill vacancies. In approximately half of those states the committees are “governor controlled,” as the governor appoints the majority of the commission members. Most other states use a judicial nominating commission in which the governor appoints half the members. 

States use a variety of procedures to select the other members of the nominating commission, with election by the state bar association being the most common. State bar associations represent attorneys who practice law within the state and often, with delegated authority from the state, are tasked with the admission of attorneys, the development and enforcement of a code of professional responsibility, and providing for continuing legal education. While it might sound like these associations are better insulated from political influence when they elect the remaining appointees to commissions, that isn’t necessarily the case.

Because the legal field is still overwhelmingly white and male, the bar appointees to judicial nominating committees tend to reflect the composition of its members. Furthermore, corporate law is the most common background of lawyers appointed to judicial nominating commissions. This leads to questions about whose interests are being represented by bar appointees on judicial nominating commission and suggests that maintaining or furthering the presence of bar appointees is not a panacea to issues of judicial selection.

Advocates of judicial nominating commissions nevertheless defend their merit-based process as a means for ensuring competence on the bench, reducing the influence of money, and insulating judges and justices from partisan whims and electoral pressures. While they may not be delivering on demographic and professional diversity, they are likely preventing politicization more than the public elections held for judges in other states. Numerous studies have found a strong correlation between donor support for judicial candidates and favorable rulings to those donors once they’re elected. Judicial elections have likewise been linked to less-favorable outcomes for criminal defendants, because judges fear being labeled “soft on crime” when they face reelection. In light of highly partisan campaigns and record spending in state judicial elections across the country in 2022, these concerns seem particularly relevant.

It’s important that we protect state courts from political manipulation whether their judges are elected or appointed. Montana, Iowa, and Kansas are pertinent examples of how Republican lawmakers either have, or are in the process of, exerting more partisan control over the judicial nominating process in response to decisions by the state supreme courts that they disagree with — particularly those protecting reproductive rights.

Iowa

Judicial nominating commissions were established in Iowa by constitutional amendment in 1962. The original commission was composed of seventeen members with the governor of Iowa and the Iowa State Bar Association each appointing eight members, with the seventeenth member being a justice of the Iowa Supreme Court. In 2018, the Iowa Supreme Court decided Planned Parenthood of the Heartland v. Kim Reynolds II (Reynolds II), in which the court struck down a state law that imposed a 72-hour waiting period for people seeking abortions. This was the first decision by an Iowa court to find that abortion was a fundamental right under the Iowa constitution. 

A year later in 2019, Republican lawmakers passed a bill to allow for the governor to appoint nine out of the seventeen members of the judicial nominating commission, allowing for greater governor control of the nomination process. The bill also shortened the term of the Chief Justice, a move that observers regarded as a rebuke of Chief Justice Mark Cady, who had written the majority opinion in Reynolds II. 

After this bill was passed, Governor Kim Reynolds (R) told a conservative group that “elections matter, and fortunately the tide is turning in Iowa’s Supreme Court. In two short years, we’ve moved the needle from left to right. We may have been slowed down a bit by [the court’s 2018 abortion ruling], but I am here to tell you that we are not done. And let me assure you, I am in this fight for the long haul.” 

In June 2022, Republican lawmakers would get the outcome they wished for as in Planned Parenthood of the Heartland v. Kim Reynolds IV. The court, in a 5–2 decision upholding a law requiring a 24-hour waiting period before an abortion, held that neither the equal protection nor the due process clauses of the Iowa Constitution protect abortion as a fundamental right necessitating strict scrutiny of abortion regulations, overruling Reynolds II. What changed? The 2022 court in Reynolds IV had a markedly different composition than the court in Reynolds II, as four of the five members of the Reynolds II majority had been replaced, due to either retirement or death, by justices appointed by Kim Reynolds. Following the United States Supreme Court’s decision in Dobbs, abortion is no longer a protected right in Iowa. It is likely that the Iowa Supreme Court will also allow a 2018 “fetal heartbeat law,” which has been enjoined since 2019, to go into effect when an opinion is issued later this summer. 

In May 2022, Democrats in the Iowa State Senate, given the ⅔ senate confirmation requirement, began to fight back and rejected four nominees of Governor Kim Reynolds for the state judicial nominating committee. Reynolds would be forced to nominate four different candidates who were ultimately confirmed. The Democratic senators pointed to Section 46.1 of the Iowa Code, which states that commissioners who sit on the state judicial nominating committee “shall be chosen without regard to political affiliation,” and alleged that Reynolds had taken political affiliation into account when appointing nominees. The rejected nominees, however, were still able to serve on the commission for 60 days, during which they helped select a replacement, David May, for Justice Brent Appel, who retired on July 13. Justice May has stressed the importance of judicial deference to the legislature, and in Iowa, the Republican party has controlled both the House and Senate since 2017. With the appointment of Justice May, all seven of the justices on the Iowa Supreme Court are now appointees by Republican governors.

Iowa is a stark example of how state lawmakers and officials have transformed judicial nominating commissions into partisan bodies in order to appoint judges that will hew to their political agenda. Given the success Iowa Republicans have had in transforming the State Supreme Court, they have introduced legislation in 2023 to similarly give the Governor control over the nominating commission for Iowa District Court judges.

Montana

The Montana Judicial Nominating Commission was established in 1973 by the Montana legislature and was tasked with vetting and creating a shortlist of candidates for mid-term judicial vacancies from which the governor would select. The commission had seven members, with four appointed by the governor, two by the state supreme court, and one elected by Montana district court judges. 

In March 2021, however, Republican Governor Greg Gianforte signed into law Senate Bill 140, which abolished the independent judicial nominating commission, allowing the governor to make direct appointments (subject to Senate confirmation) for vacancies on the Montana Supreme Court and lower courts. The appointed justices must still face election at the next general election if they want to hold onto their seats. Running as the incumbent, however, bestows a great electoral advantage, especially in less-salient elections. This law was immediately challenged but was upheld in a 6-1 decision by the Montana Supreme Court. Another state law, which was ultimately struck down by the Montana Supreme Court, would have shifted the supreme court elections from a state-wide basis to district level. Being able to create districts that each elect a supreme court justice would have paved the way for partisan gerrymandering.

These changes to judicial appointments are part of the larger effort by the Republican-controlled Montana legislature to compromise the independence of the judiciary. Republicans have been explicit about their partisan motivations, as state Republicans have criticized “the woke, liberal agenda of the Montana Supreme Court.” In 2022, the Montana Supreme Court enjoined three state laws that placed restrictions on the right to an abortion, as recognized by the Montana Supreme Court in its 1999 decision Armstrong v State. This has led to a new wave of proposed legislation that would infringe upon the independence of the Montana judiciary.

A bill introduced on January 17, 2023 would explicitly interpret the state constitution’s right to privacy as not encompassing the right to an abortion — a legislative overturning of Armstrong v. State. Another bill would allow the Speaker of the House and the State Attorney General to appoint two of the five members of the Judicial Standards Commission, which hears complaints against the judiciary — replacing the two appointees elected by Montana district judges. A series of bills introduced in 2023 would implement a more stringent standard for the issuance of temporary restraining orders and preliminary injunctions, and would prohibit the issuance of a temporary restraining order against the state or its officers without notice. 

These changes can be seen as a response to the Montana Supreme Court’s enjoinment of the three bills restricting abortion in the summer of 2022 and issuance of a temporary restraining order against collection of signatures for a ballot measure favored by Republican lawmakers. Despite these attempts by the legislature to cow the judiciary, the Montana Supreme Court, in a May 12, 2023 decision, reaffirmed that the right to an abortion is protected by the Montana Constitution, striking down a law that made it a felony for any licensed or medical professional, except physicians and physician assistants, to provide early abortion care.

Kansas 

The Kansas Supreme Court, in a 2019 decision, held that the Kansas Constitution protects the right to an abortion. In August 2022, Kansas voters rejected a proposed constitutional amendment that would have abrogated the right to an abortion. Finally, despite a sustained campaign by anti-abortion activists targeting all five justices appointed by Democratic governors, Kansas voters retained all five.

After failing twice at the ballot box, Republican lawmakers have been considering a new avenue in which to attack the right to an abortion — changing how justices are selected. Republican lawmakers have proposed, and are in the process of gathering support for, a constitutional amendment that would require all judicial nominees to be confirmed by the state Senate, a body that has been controlled by Republicans since 1917. Kansas currently uses a merit-based selection process in which a bar-controlled judicial nominating commission assists the governor, a seat that multiple Democrats have held over the past two decades, with the appointment of supreme court justices. This would severely limit the ability of Governor Laura Kelly (D) to make appointments in the event of a retirement or resignation.

Where To Go 

The immediate future seems grim in states where the judicial nominating process has been captured by partisan interests and the normal process of political accountability is often subverted by partisan gerrymandering. Yet, as Kansas has demonstrated, rights-stripping efforts, particularly with regards to reproductive rights, have proved unpopular.

In states where the governor controls the nominating committee, gubernatorial candidates can emphasize their ability to appoint justices who will uphold and expand fundamental rights. Voters, in turn, should recognize that they have a role to play in protecting the integrity of their courts from the extremist forces trying to overtake them. 

Zachary Dulabon is a 2023 Columbia Law School graduate and pro bono intern at Alliance for Justice.