The late Justice Ruth Bader Ginsburg, when asked how many female U.S. Supreme Court justices would be enough, famously replied, “when there are nine.” Yet the court that Ginsburg envisioned would be impossible if it were governed by Iowa’s gender quota, which mandates an equal number of male and female commissioners on the state Judicial Nominating Commission elected by members of the bar.
This commission interviews candidates and gives the governor a list of names to choose the next judge on the Iowa Court of Appeals or justice on the Iowa Supreme Court. This is an important job — one that Iowans should want to be entrusted to the most qualified individual. But under Iowa law, the most important qualification for this job is the person’s gender. A gender quota mandates an equal number of men and women elected to the commission — one man and one woman in Iowa’s four congressional districts. And because elections are staggered, open seats in some districts are available only to men, and seats in other districts are only available to women.
Two Iowans filed a federal civil rights lawsuit to end Iowa’s gender quota (disclosure: we represent the plaintiffs in this case). These Iowans are qualified by any measure. Rachel Raak Law served Iowans for six years as a commissioner on the District Judicial Nominating Commission, where she diligently interviewed judicial candidates and recommended those best suited to serve on Iowa’s district courts. But she is currently barred from serving on the State Judicial Nominating Commission, where she would diligently interview judicial candidates and recommend those best suited to serve on Iowa’s appellate courts. The departing commissioner in that district is a man — and must be replaced by a man in order to maintain Iowa’s gender quota.
Micah Broekemeier faces a similar barrier. The opening in his district is reserved for a woman. So although Micah helps select candidates for public office as part of his work with his county’s political party, he’s ineligible to do similar work on the judicial nominating commission.
As Rachel’s and Micah’s stories show, the government’s obsession with proportional group representation threatens individual opportunity. Each election, the gender quota excludes countless Iowans from consideration — regardless of their ability or experience — solely because they would upset the gender balance mandated by Iowa law.
This is the latest in a long line of cases that show how demands for equity subvert individual opportunity. In another case, my colleagues at Pacific Legal Foundation are fighting for the rights of Evan Ng — a talented gymnast at the University of Minnesota. The University sought to align the ratio of male-to-female athletes with the school’s entire undergraduate enrollment and as a result, eliminated the gymnastics team that Evan worked so hard to join. In another case, I fought for the rights of seven Black and Hispanic families whose children were stuck on a wait list at world-class magnet schools in Hartford, Connecticut. The schools were governed by a pernicious racial quota that reserved a quarter of the seats for white and Asian students. But because the magnet schools could not garner enough interest from white and Asian students — many of whom attended good neighborhood schools in the suburbs — the quota forced the schools to leave seats empty while black and Hispanic children were stuck in failing neighborhood schools in the city of Hartford.
A common theme runs along all those cases: the government’s efforts to ensure proportional group representation come at the expense of the individual. Regardless of the motives leading to their enactment, quotas are demeaning in principle and limit opportunities in practice. Above all, they violate the cardinal principle of the Equal Protection Clause of the 14th Amendment: equal treatment under the law. Individuals have the right to be judged on their abilities and not on the basis of gender.
This op-ed was originally published by the Des Moines Register on July 17 2022.