While most politically-engaged Iowans are well-aware of the ideological leanings of the U.S. Supreme Court and the Iowa Supreme Court, they may not realize how skewed to the right the federal appeals court that covers the state has become.
The Eight Circuit Court of Appeals, which covers Iowa, Minnesota, North Dakota, South Dakota, Nebraska, Missouri and Arkansas, has the highest percentage of Republican-appointed judges of any circuit court in the nation. A full 10 of the 11 Eight Circuit judges were installed by Republicans, dating back to George H.W. Bush Administration. Only one – Jane Kelly of Cedar Rapids – was appointed by a Democrat (Barack Obama).
In the hierarchy of the federal court system, the Appellate Court is one step below the United States Supreme Court.
The Republican-controlled U.S. Senate has now approved 140 of President Donald Trump’s federal court appointees, all at a pace far faster than previous presidents. As of July 1, Trump has successfully appointed 41 appeals court judges.
By this point in their presidencies, George W. Bush had 26, George H.W. Bush had 24 and Reagan had 20. In comparison, Obama had 19 appeals court confirmations and Bill Clinton had 24 by now.
The most recent appointment to the Eight Circuit, which impacts Iowa, was Jonathan Kobes, a lawyer from Sioux Falls, South Dakota. The American Bar Association gave him a “not qualified” rating because he didn’t have enough writing samples to prove his qualification.
He was confirmed by the narrowest of margins in late 2018, with Vice President Mike Pence having to come in to cast a tie-breaking vote in the Senate. All Senate Democrats voting against him, plus Republican Senator Jeff Flake.
That conservative court-packing of the Eighth Circuit has had its impact on how Iowa attorneys deal with the legal system.
One Iowa lawyer who requested his name not be used because he has cases currently pending in the Eighth Circuit said the appointments have made the Eighth Circuit an unfriendly place for employment discrimination cases. Judges tend to find a reason to rule against victims of discrimination in those cases, no matter what the outcome of the original case was.
He said the problem is getting worse, too.
Freedomworks.org, a conservative judicial political network that tracks the courts across the country, touts the Eight Circuit as among the most right-leaning courts in the country.
In 2018, the Eighth Circuit Court ruled on a case wherein an employer produced reasons for terminating an employee after the case had gone to trial. Normally, those reasons would not be considered, but in this case the Appellate Court allowed it.
“The employer gave two reasons for its action at the time of termination, but came up with two others when it filed its motion for summary judgment,” wrote Patrick Smith on the Iowa Employment Law Blog last year. “Even though the employer seemingly was inconsistent in the stated reasons for the termination, the trial court granted summary judgment. On appeal, the plaintiff claimed the trial court failed to follow the requirements of the pretext framework … The Court of Appeals rejected the plaintiff’s argument, and concluded the plaintiff was mistaken the employer could defeat summary judgment only based upon reasons articulated at the time of the termination.”
The Iowa lawyer Starting Line spoke with, as someone who represents plaintiffs in discrimination cases, said he files his cases in state court because it’s more fair than the Eighth Circuit. That strategy sometimes means doing things in a roundabout way, such as suing Iowa individuals rather than out-of-state corporations. This often means individuals who have little involvement in cases get dragged in anyway.
Matt Sinovic, the executive director at Progress Iowa, a progressive advocacy organization in the state, said the conservative shift is dangerous for the system.
“It’s indicative of the entire court system lurching rightward and to a more extreme place under Trump,” Sinovic said. “It’s one of the few ways that Trump has governed really efficiently.”
Appellate courts see more cases than the Supreme Court does, so they’re often responsible for making the final decision on a number of issues. In recent years, the Eighth Circuit has heard cases about abortion laws, racial discrimination and lethal injection.
“It’s been just one after another, appointees that have been more extreme than the last, and they’re all lifetime appointments, so it’s just this litany of extreme ideology influencing our Court decisions and that’s going to affect our judiciary for decades,” Sinovic said.
by Nikoel Hytrek