Judicial elections: What’s wrong with letting the people choose?

Does Minnesota’s system of selecting judges really need to be changed? Does the present system invite excessively partisan and expensive judicial election contests?

Answering these questions requires a trip through American history to when the founders were grappling with how to structure our government. Their big worry was how to avoid the abuses of power they had experienced under the British monarchy. Their solution was a system of checks and balances, with separation of powers among the three branches of government — legislative, executive, judicial — so as not to concentrate too much power in any one branch.

The founders wanted an independent judiciary with impartial judges free of influence from the other branches, political parties or any outside interests. They understood that many court decisions involve a balancing between individual and societal interests and are therefore bound to be controversial. They did not want the judiciary embroiled in politics; neither did they want the executive to have the ability to pack the judiciary with political cronies They believed permanence in office was necessary to achieve these ends; accordingly, federal judges serve for life (actually they hold office during “good behavior”). A “check” was inserted in the Constitution, however, whereby judicial appointments were made subject to the “advice and consent” of the Senate. This method of judicial selection was designed to maintain stability and it has largely succeeded.

The Minnesota Constitution is modeled after the federal, but there are differences in how judges are selected. Most significant is the fact that in Minnesota, a traditionally populist state, permanence in judicial office was not embedded in the constitution. State court judges serve finite terms of six years and must stand for election in order to continue in office. In practice, most judges in Minnesota are appointed by the governor and only a small percentage attain the office by challenging a sitting judge in a contested election. The potential is always there, however, and this power of the people serves as a check on both the governor’s power to appoint and on the judiciary itself.

Fears of partisanship, expense
Now a group of citizens has proposed to change how judges are selected in Minnesota. They are afraid Minnesota’s judicial elections may become partisan and expensive, as they have in a few other states. They propose to prevent this from happening (it has not happened yet) by abolishing elections altogether. Instead voters will be asked to answer whether or not a judge shall be “retained” in the position. If a majority votes against retention the governor would appoint a replacement. Is the proposed change a good one? The answer is not as simple as the proponents argue.

First, we should understand the difference between the functions of a trial court and an appellate court. In Minnesota the district courts are trial courts; there are 289 trial judges. The Minnesota Court of Appeals (19 judges) and the Minnesota Supreme Court (7 justices) are appellate courts.

A trial court is a “fact-finding” court that applies the law to a particular set of facts. We say it is a fact-finding court because that is where the “true” facts are determined. An easy example is: Was the light red or green? Once the facts are determined, the court applies the law. The law may be either statutory law — law enacted by the legislature — or “common law” — law established by the precedent of other decisions in similar cases by higher courts.

The trial court judge’s function is like that of an umpire, calling balls and strikes according to rules of law established by the Legislature or the Supreme Court, regardless of the judge’s personal opinion.

Different role for appellate judges
Appellate judges, by contrast, have a lot to say about what the rules of law are. For example, there is a body of law called “search and seizure” that governs what the police can and cannot lawfully do in searching for evidence of criminal activity. That law is not found in the statute books. It is found in the reported decisions of appellate courts that interpret the Fourth Amendment to the Constitution. 

Of course, trial courts interpret the law too, but the trial court interpretations are not binding on other courts, and if a trial court makes an error of law, an appellate court has the power to correct the error. Because of their authoritative power to declare what the law is, appellate courts are sometimes loosely described as “philosophical courts” to distinguish them from trial courts. That distinction comes dramatically into focus when the United States Senate holds hearings on prospective Supreme Court Justices. It traces back to one of the most famous cases decided in the nation’s infancy, Marbury v. Madison, in which Chief Justice Marshall clearly defined the power (he said “duty”) of the court to “say what the law is.” Or, as stated by the Minnesota Supreme Court Information Office: “… the Supreme Court can have the greatest effect on law and society since its decisions often serve as precedent for future cases.”

The proponents of change in the way judges are selected for office indiscriminately lump together both the trial courts and the appellate courts, like the Supreme Court, despite the differences between their functions. Their real concern is maintaining the stability of the Supreme Court and protecting it from attack by partisans of whatever persuasion. It is the Supreme Court that creates the precedent on issues that may raise public controversy, ranging from gun control to abortion to the death penalty — not the trial court. The trial courts have no choice but to follow what the Supreme Court says the law is.

Proposal reflects mistrust of voters’ common sense
This proposal to destroy the long-established, constitutional right of the people of Minnesota to elect their judges is based on fear and a mistrust of the voters’ common sense. It abolishes the people’s invaluable check on the power of the governor’s office and replaces it with the watered-down concept of a retention election. Rather than the balanced system we now enjoy, it concentrates an unprecedented amount of power in the governor’s office. It means that even if the people reject the governor’s appointment in a retention election, the governor gets yet another chance — to appoint the successor.

Retention elections will not prevent expensive, anti-incumbent challenges by special interests or partisan groups. These have happened elsewhere, notably in California, where three Supreme Court Justices were not retained because of their opposition to the death penalty. The glaring weakness of retention elections is they allow ambush campaigns against good judges at the 11th hour without allowing the incumbents a fair opportunity to organize a defense of their record. The possibility of such attacks means judges will still be required to have campaign funds in order to defend themselves from challenges.

Retention elections are also more likely to spawn single-issue campaigns that distract from the real merits of what is at stake in a judicial office. Is that an improvement? And let’s face it: A mediocre or flawed judge who has not incurred the wrath of special interest groups will, in all probability, survive a retention election. There is no opportunity for the people to replace a mediocre or flawed judge with a challenger of better quality.

Under current system, voters have a real choice
The strength of the current system is that when a gubernatorial appointee turns out to be a scoundrel or an incompetent, the voters have a real choice: they can compare a challenger to the incumbent and decide who is the better candidate. There can be a candid discussion of the merits of each candidate. That choice is made in an open, transparent process, not behind the closed doors of a “merit selection” committee or the governor’s office.
   
Just so you know, I am a product of the present system. I was one of six challengers to a sitting judge. The incumbent judge and I survived the primary and I prevailed in the general election. That was 26 years ago. Since then I have been re-elected four times in uncontested elections. During that time two other incumbents, both gubernatorial appointees, have been unseated in Ramsey County. In my memory no Ramsey County judge who first attained office by election has been unseated. Of the 29 judges now sitting in Ramsey County five first attained the office via election and the rest were originally appointed by the governor. 

I question whether any change is desirable. If the people really feel that it is, a much more focused approach should be used, one in which effective checks and balances are preserved.

First, in line with the Ramsey County Bar Association’s Resolution on Judicial Selection and Retention, retention elections, if any, should be confined to the justices of the Minnesota Supreme Court and the judges of the Minnesota Court of Appeals because these courts perform an appellate function for which permanence in office makes some sense.
 
Second, in keeping with the checks and balances built into the U.S. Constitution, any nominee to those benches should be approved with the “advice and consent” of the Minnesota Senate. Proponents of the current proposal will argue that this is unnecessary because their proposal requires that any candidates first be filtered through a judicial “merit” commission. This is not a sufficient check against potential abuse of the process by a governor; it is conducted behind closed doors by a select group of insiders who have been chosen by the governor and the Supreme Court. It is far better to subject candidates for judicial office to the open scrutiny of the public forum.

Any tradeoff of the people’s right to elect their judges must be offset by maintaining real checks and balances on the power of the governor’s office. The public must have confidence that judicial appointments truly are based on merit, not connections. The approach I’ve described better balances the need to protect the “Rule of Law” and maintains our crucial set of checks and balances. There is nothing wrong with letting the people decide.

Margaret M. Marrinan is a District Court judge in St. Paul.