Gender quota on panel is no longer needed, and the judge got it right
Iowa’s gender quota for elected members of the State Judicial Nominating Commission was recently enjoined by a federal judge. The law required the eight members of the commission elected by Iowa lawyers to be evenly split between male and female commissioners. I was part of the legal team that successfully challenged this law.
Peter Larsen writes in the Jan. 19 Register that the judge reached this ruling only because “it’s painfully obvious to lawyers that this was a case of incredibly poor defense by the state.” He also finds it ironic that the decision was reached by a female federal judge. Let’s dig into his arguments.
Larsen’s attack on the state’s lawyers falls flat. One just has to read Chief U.S. District Judge Stephanie Rose’s order to see that the state offered numerous reasons why the law was valid, called a professor as an expert witness, and introduced statistical evidence about how the Iowa process has worked. The judge examined this evidence in detail in over nine pages of her ruling. The problem wasn’t with the lawyers defending the law, it was with the law itself.
Larsen tries, as he should, to explain the legal issue to a lay audience. But he makes a basic mistake in his explanation. When he describes the standard the judge had to apply to review the law he conflates the standard that applies to racial classifications with gender ones.
The law presumes that gender-based classifications are invalid. In other words, a court will find them unconstitutional unless convinced the classification furthers an important governmental objective and the classification is substantially related to the achievement of the objective. Although the gender quota may have served a purpose when it was first enacted, it had outlived any usefulness and did not reflect current discrimination. Because a gender classification can only last as long as it continues to be substantially related to an important objective, the quota could no longer be upheld.
Larsen credits the gender quota law for the increased number of female judges in Iowa and points out there are currently two female Iowa Supreme Court justices for the first time in the court’s history. That would be news to former Justice Linda Neuman (appointed 1987) and former Chief Justice Marsha Ternus (appointed 1993) who served together on the court until Justice Neuman retired in 2003.
One last point about Larsen’s argument. He thought it ironic that the gender quota was struck down by a female judge. I certainly don’t. Rose took an oath to dispense justice impartially. It insults her to insinuate that she should or would decide a case differently because of her gender. Larsen demonstrates in a single sentence why quotas based on immutable characteristics are so toxic. Thankfully, there is one fewer in operation today.
Alan Ostergren is president and chief counsel of the Kirkwood Institute, a public-interest law firm in Des Moines.
This article originally appeared on Des Moines Register: Iowa judicial nominating panels no longer need gender quotas
