Lawsuit challenges Iowa’s gender-balance requirement for judicial selection panel

By: - May 26, 2022 2:09 pm

Two Iowans are suing the state over gender-based restrictions to serve on the State Judicial Nominating Commission. (Photo by krisanapong detraphiphat/Getty Images)

Two Iowans are suing the state over gender-based restrictions to serve on the State Judicial Nominating Commission.

Rachel Raak Law of Correctionville, and Micah Broekemeier of Iowa City, are suing Robert Gast in his capacity as state court administrator for Iowa’s Judicial Branch. The lawsuit was filed earlier this week in the U.S. District Court for the Southern District of Iowa.

The lawsuit claims that for more than 30 years, Iowa law has imposed a gender quota on the selection process to fill vacancies on the State Judicial Nominating Commission, which is the panel that interviews candidates for Iowa’s appellate courts. The commissioners select finalists among applicants for positions on the Iowa Court of Appeals and the justices on the Iowa Supreme Court, from which the governor selects her appointees.

The commission is composed of 17 members, including nine appointed by the governor and eight elected by district-resident members of the bar. The elected members – two from each of Iowa’s four congressional districts – serve staggered, six-year terms and are elected in the month of January for terms that begin July 1 of odd-numbered years. In January, there will be a total of three openings — one each in congressional districts 1, 2, and 4 — for elected positions to the commission.

The gender requirement in Iowa law dictates that the new commissioner in district 1 must be a woman, while the new commissioners in districts 2 and 4 must be men.

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One of the plaintiffs in the newly filed lawsuit, Raak Law, has worked for six years interviewing candidates for Iowa’s district courts as a member of the District Judicial Nominating Commission and she now wants a seat on the State Judicial Nominating Commission. Because Iowa law requires that commissioner to be a man, Raak Law is excluded from consideration, the lawsuit alleges.

Co-plaintiff Broekemeier serves on a candidate nominating committee for Johnson County Republicans and, like Raak Law, he now wants to serve on the State Judicial Nominating Commission. The lawsuit alleges that because Iowa law requires that the new commissioner in that district be a woman, Broekemeier is excluded from consideration.

The lawsuit claims Iowa’s “gender quota is especially pernicious because it limits opportunities for Iowans to participate” in the judicial selection process. “Pursuant to the gender quota,” the lawsuit claims, “men can only run for seats previously held by a man and women can only run for seats previously held by a woman.”

The lawsuit claims that gender requirement violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.

The Iowa Legislature first enacted a gender requirement for service on the commission in 1987 and revised the law in 2019 to specify that within each congressional district there must be two commissioners of different genders.

In some states, judges are publicly elected or are appointed by the governor. In others, including Iowa, judges are chosen by merit or the so-called “Missouri Plan,” in which a nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who then makes an appointment from that list.

The lawsuit acknowledges that gender quotas are permissible if the government can show that they serve “important governmental objectives and that the discriminatory means employed” are “substantially related to” the achievement of those objectives.

“The government cannot explain how outright gender balancing remedies any past discrimination,” the plaintiffs claim. “The gender quota contains no end date. Instead, the gender quota lasts in perpetuity, thereby creating an interest in gender balance for the sake of it.”

The lawsuit seeks a judicial declaration that the gender requirement violates the U.S. Constitution, a permanent injunction barring the state court administrator from enforcing the requirement and an award of attorneys’ fees and expenses. The state has to file a response to the lawsuit.

The plaintiffs are represented by former Muscatine County prosecutor Alan Ostergren, who now runs the Kirkwood Institute, a privately funded conservative nonprofit that sued the state earlier this year over certain licensing board actions. Ostergren’s co-counsel are lawyers with the Pacific Legal Counsel, a libertarian public interest law firm based in California.

Read more: Senate Democrats defeat four governor’s appointees to the judicial nominating commission

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.

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