If Jason Besler is a judge, he should resign.
Besler was one of two men nominated to fill a vacancy on the Sixth Judicial District Court in Iowa City. Gov. Kim Reynolds had 30 days to make her choice. She missed the June 21 deadline — despite what her office contends — but then swore him in anyway.
Now it’s a mess.
There’s pressure on Chief Justice Mark Cady to make the appointment valid by choosing him as the judge. Indeed, former Supreme Court Justice Michael Streit urged that in a column in The Des Moines Register. And Cady could have done that when the deadline was missed. The law gives him the power to choose among the nominees if the Governor fails to do so.
But now it’s too late, for Besler has been sworn in. Now he’s on the bench, making decisions on matters great and small — decisions that may well be unenforceable. For if Besler were appointed in violation of the Iowa constitution and the Iowa Code, he has no standing to be sitting.
There’s only one way out.
Besler should resign. The judicial nominating commission for the Sixth District then should meet, come up with two names and send them to the Governor, whomever that may be by the time the process runs its course. If Besler’s name in on the list, so be it. If he is chosen, then he’d be a legitimate judge. If he isn’t chosen, well, he can blame his brief career as a judge on the carelessness or arrogance of the Governor and her staff.
There are two other options. The Republicans could continue to pressure Cady to select Besler. But he no longer has that power, and an attempt to do that would damage his credibility and the credibility of the Supreme Court and lead to continued and stepped-up controversy. More important, on Oct. 8 he sent a note to Iowa’s judges advising them that he “will take no action” at this time.
Noting that the Governor believes she has legally appointed Besler, Cady said that under the Iowa constitution, “only one person can exercise the appointment authority at a time. Additionally, the constitution does not give the chief justice any additional authority to ‘confirm’ or ‘ratify’ a judicial appointment made by a governor. The chief justice only has the power to ‘make the appointment’ if the governor fails to do so.”
The second option is that Besler could just stay on the bench, meaning that every decision he renders could be appealed on the ground he had no power to rule.
Des Moines lawyer Gary Dickey, a one-time counsel in the Vilsack administration, on Oct. 9 “formally demanded” that Johnson County Attorney Janet Lyness file a civil action against Bessler alleging he is unlawfully holding the office. If she doesn’t, Dickey wrote, “I may apply to the court for leave to bring [the civil action] in my personal capacity.”
Besler could make all this easier by resigning.
And that’s what he should do. ♦
— Michael Gartner