Iowa is one of only two states with an all-male Supreme Court, but a new study from the University of Iowa College of Law suggests more diversity can be achieved with a few tweaks to the state’s lauded merit selection system.

“Compared to a national average of 31 percent female jurists on courts of last resort, the Iowa Supreme Court’s lack of female representation is striking,” says Gina Messamer, a third year law student from Oskaloosa who wrote the study “Iowa’s All Male Supreme Court,” published in the current edition of the Iowa Law Review.

In fact, she says the Iowa court has had only two female justices in its history: Linda Neuman, from 1986 to 2003, and Marcia Ternus, from 1993 until 2010. Today, Idaho is the only other states with all male supreme courts (Indiana's Court swore in a woman as justice in November).

The problem, she finds, comes from subtle biases built into the state’s Judicial Nominating Commission, an independent body appointed by the governor and the Iowa Bar Association that reviews and nominates candidates to the governor to fill judicial openings. The system has been much lauded as a fair and impartial method of selecting judges and justices, and Messamer agrees that’s generally true. But it has weaknesses when it comes to selecting women, she says.

For instance, between 1978 and 2011, only 21 percent of the applicants for Supreme Court justice vacancies were women, which implies that not enough women apply for judicial positions. But she says that’s only part of the story. Only 10 percent of the judicial nominating commissions nominees during that time were women, and only two women have been appointed.

“Proportionately fewer women progress to the nominee phase, and the female representation further decreases at the appointee phase,” Messamer says. “Where relatively few women apply for available positions, those women who do are increasingly excluded as they move through the funnel.”

She says the process to replace three judges who were turned off the bench in a retention election in 2010—including Ternus—illustrates the point. Of the nine nominees put forward by the Judicial Nominating Commission, only one was a woman. All three appointees were male.

She points to the subtle but powerful flaws in the nominating process as the problem. For instance, she finds the majority of the commission’s nominees have been lawyers who worked in law firms when they were in practice, instead of in government service. She says this implicitly favors men because more men work for firms and more women work in government.

To rectify these biases, Messamer suggests making several modifications to the judicial nominating process:

• The state should compare the number of current women judges and justices, and the number of women in the pipeline to become judges and justices, to the number in other states. She says this would increase awareness of the issue and provide accountability.
• Members of the Judicial Nominating Commission should be trained to detect their own biases during the interview process, and to not ask irrelevant questions about balancing work and family, or what their husbands think of them becoming a judge, questions she says have been asked of past female candidates.
• Evaluate candidates based on their success at each judicial level, and how that might apply to the position they’re applying for. The desired characteristics should also be tailored specifically for each opening, based on what kind of experience might be lacking among current justices or judges.

“Iowa should not be content with token female members of the judiciary,” Messamer says. “The state should aim to join the ranks of states that come close to judicial gender equality.”