Skip to Content

Support MinnPost

MinnPost logo 7th Anniversary

MinnPost’s online auction is now live!
Register and start bidding today

Pawlenty's Supreme Court picks raise sticky and embarrassing issues

Justice Lorie Skjerven Gildea
Justice Lorie Skjerven Gildea

It’s awkward.

Gov. Tim Pawlenty yesterday elevated Minnesota Supreme Court Justice Lorie Gildea to be chief justice just eight days after Gildea had published a strong dissent taking Pawlenty’s side in the unallotment case. Awkward.

Pawlenty simultaneously appointed Law David Stras as an associate justice. Stras is just 35. He’s a former law clerk for U.S. Supreme Court Justice Clarence Thomas, whom he described yesterday as his “mentor.” Stras has never been a judge, never argued a Supreme Court case.

Stras did once file an amicus brief in a big Supreme Court case, but as MinnPoster Doug Grow noted in yesterday’s coverage of the announcement, Stras’ amicus brief was also in that unallotment case and, unsurprisingly, it was on Pawlenty’s side of the case. Awkward, I call it. A bit sticky.

State Rep. Ryan Winkler, who is also an attorney, used stronger language. In a press release (that means he had time to think about his word choices), he called the appointments “nauseating.” He said Gildea’s promotion was “just a big thank you for the loyal dissent she wrote last week defending Governor Pawlenty’s illegal unallotments.” See if you can guess Rep. Winkler’s political party.

I call Winkler’s word choices a bit over the top but, as regular readers know, I’m a big wimp about civility. Frustration with Pawlenty has reached the point where DFLers are struggling to maintain a civil tone about him, and Winkler lost the struggle.

The truth is, Gov. Pawlenty is constitutionally empowered to appoint anyone “learned in the law” to the Supreme Court. (Minnesota Constitution, Art. VI, section 5 and 8.) It is completely normal and expected that governors will appoint members of their own party and lawyers who share their general philosophy. Unlike federal judges, Minnesota judicial appointees are not subjected to a confirmation process in front of the legislative branch, so there is even less of a check on the governor's discretion.

Parallel universe
The truth is the entire system of judicial selection is operating, not exactly outside of but in a parallel universe from the constitutional plan. Supreme Court justices (and all Minnesota judges) are supposedly chosen by the electorate, with the governor’s appointment power applying only vacancies that occur by deaths or resignations during a judge’s term. But in reality, almost all judges start out as gubernatorial appointees and then, observing an unwritten code, they retire at a point in their terms when the governor can appoint their “interim” successor. Once appointed, justices almost never are defeated for reelection.

There are efforts under way to change this system. Republicans supposedly favor more democracy in judicial succession but that didn’t get in the way yesterday’s awkward events.

Gov. Tim Pawlenty
REUTERS/Jim Bourg
Gov. Tim Pawlenty

Because he has been in office more than seven years, Pawlenty has had the opportunity to appoint many judges, including many Supreme Court justices. At present, four of the seven justices are Pawlenty appointees. Three of his four appointees voted on his side of the unallotment case, and all three of the non-Pawlenty appointees voted against Pawlenty’s use of the unallotment power.

Awkward. Embarrassing. Our legal/constitutional system really relies fairly heavily for its credibility on preserving the impression that judges interpret the law, and even that they do so without any consideration of the governor or president that appointed them. But when the governor himself comes before the court as an appellant, in the highest-stakes case of his own political career, and the votes break down the way they did in this case, how believable is that impression?

It gets more awkward. By the time they decided the unallotment case, the justices all knew that Chief Justice Eric Magnuson had announced his plans to retire.  The three Pawlenty-appointed associate justices would be obvious candidates to replace him.

Pawlenty interviewed three finalists for the chief justice job. The three were the same as the three associate justices he had previously appointed to the court who had just voted to ratify his unallotments.

It gets more awkward, sticky, embarrassing. One of the three, Justice Christopher Dietzen had been the attorney for Pawlenty’s gubernatorial campaign. Another, Justice G. Barry Anderson, had been the attorney the Minnesota Republican Party.

Perhaps you are wondering whether any of the justices should have recused themselves from hearing the case.

The Judicial canons of ethics say that a judge should recuse himself if he or members of his immediate family have an interest in the case, usually meaning that the judge or a close relative stands to win or lose money. Any judge can also recuse, but is not to required to do so, if he feels that his participation might create an unacceptable appearance of partiality. This decision is entirely up to the judge (or justice).

Political implications
But consider that in a case with such highly partisan and political implications, every judge who achieved their position through a political process is likely to have some awkwardness in their biography.

Then there was Gildea, who wrote the opinion. Her husband, Andy Gildea, is a Republican activist who has made his living mostly raising funds for and/or working directly for Republicans. At present, Andy Gildea is listed as a “research consultant” for the GOP caucus of the state House of Representatives, for which he receives a full-time salary of $77,036.88. (At least that was the amount in March, when I inquired because I was wondering about the possibility that any of the justices might recuse themselves in the unallotment case.)

A group of members of the House GOP caucus, who are, in a sense, Andy Gildea’s employers, also sponsored an amicus brief in the unallotment case, unsurprisingly on behalf of the Pawlenty side of the case.

(I don’t know if you’ll believe me, but I’m not being sarcastic here. The House of Representatives itself, controlled by its DFL majority, also filed a brief, unsurprisingly against the Pawlenty side, and that one was paid for with public funds. I’m only underscoring how awkward it gets, every which way you turn, when a governor, who has the power of appointment over judges has a high-stakes case, full of partisan and personal political implications, in the courts.)

Experts split
I came close to writing about the recusal question and the Andy-Gildea’s-job angle before the unallotment case was argued. I probably should have. But the main reason I didn’t is that the case bore no real implications that would put money in or take money out of the Gildea family’s income stream. If it had, I feel confident that Justice Gildea would have recused herself or her husband would have quit his job.

I talked to several judicial ethics-expert types. Some thought Justice Gildea should recuse, some thought not. But without that family financial interest, as best I could figure out, without the potential for the ruling to effect the Gildea family treasury, the recusal decision was entirely up to Justice Gildea.

In the end, Gildea sat on the case and ended up writing the dissent. Now she is the chief justice designee. Awkward.

This post isn’t complete without mentioning that the fourth Pawlenty appointee on the current court, the retiring Chief Justice Eric Magnuson (who had been, at one point, a law partner of Pawlenty’s), voted against Pawlenty’s side and wrote the majority opinion. A vote like Magnuson's in this case, and likewise the court's unanimous opinion settling the Franken-Coleman recount case (Dietzen and Gildea joined in that per curiam ruling, Magnuson and G. Barry Anderson recused because they had served on the canvassing board that conducted a key portion of the recount) are the kinds of things that can restore confidence in the impartiality of the court. And they are not really so rare.

But the awkwardness is still at the core. When we celebrate those cases where a judge or a court deviates from the partisan positions of the elected officials that appointed them, we are also acknowledging the fundamental awkwardness of the way the whole thing works. And I’ll also acknowledge that I don’t know a way take the politics out of judging, or out of the perception of judging.

Get MinnPost's top stories in your inbox

Related Tags:

Comments (28)

Kudos on a fair exploration of the problems inherent in the political appointment of supreme court justices. No one could reasonably expect that a non-Pawlenty appointee would succeed Chief Justice Magnuson.

We could, however, reasonably expect a new appointee to have some substantial experience in the actual practice of law, if not in the courts. Justice Stras will have to work hard to gain acceptance by those who will appear before him or live with his decisions. The Minnesota Supreme Court is not law school. Its decisions have real consequences, some (most?)of which we will have to rely on other justices to anticipate due to Stras' lack of field experience.

Gov. Pawlenty is not the first governor to lose a case in a decision written by his own appointee. As a friend of mine reminded me the other day, before Justice Gildea's elevation, Sandy Keith was appointed by Rudy Perpich, then wrote the decision that allowed Arne Carlson on the ballot and resulted in Perpich's departure.

***
"It is completely normal and expected that governors will appoint members of their own party and lawyers who share their general philosophy."
***

Agreed.

And thank you for pointing out that not only has Gov. Pawlenty appointed members of his party, they are well-connected insider party activists; especially with respects to CJ Gildea and her GOP-employed husband.

While I'm sure this is just fine today for today's GOPers, it remains to be seen if they'll be just as happy when a future DFL Governor appoints the mirror opposite.

Personally, I doubt they will.

As Tom Petty said, "It's good to be king."

Very well said Eric. I think the timing was not fair to Justice Gildea. Even waiting a month until the legislative session was over would have been much better. This says lots about TP's lack of temperament and judgment and his impulsivity. That said I thought the Gildea opinion was not well done but then she is short on experience. I also think the Gildea's should not have accepted a position on the court if Mr. G was going to continue in his position as a party operative.

This is over the top even for Pawlenty. I'm not naive enough to think that politics don't play a part in judicial nominations (one of my friends once described judges as "friends of the governor'), but there should at least be an appearance that judicial picks are chosen for their ability to render the law impartially (which is what they're supposed to do. Chief Justices like Sandy Keith and Eric Magnuson who actually uphold the law rather than the Governor's politics are the models to seek. This appears to fall way short of that.

A bit of prophecy: As Chief Justice, Ms. Gildea will do her very best to be the MOST right wing activist judge Minnesota has ever seen on its Supreme Court.

If she can finagle a way to do it, she'll declare income taxes, especially those on dividends, capital gains, interest, and estate taxes to be unconstitutional. It's likely she'll push the court to rule against any and all regulation of business enterprises and any claims made by unions as well.

In her, King Timmy's "no taxes" (on the wealthiest among us), anti-union, anti-education policies will likely live on for decades to come.

Of course our far right friends saw the well and carefully reasoned Supreme Court decisions in the Franken/Coleman election contest and the unalotment decision stripping away the unitary executive budgetary powers King Timmy had claimed for himself as outrageously "activist," but only because they lost.

But no matter how far into the right wing field Chief Justice Gildea takes the court (and how far afield of the constitution), the right wing will see her as completely fair and just (as long as she agrees with them, of course).

It's got to be hard for a member of the scary smart, reality based community to keep a straight face while accusing a Republican executive of party cronyism at the state level, while our Chief Democrat in Charge is simultaneously doing the same thing on a national level.

Awkward, sticky, embarrassing....yes, indeed.

And I’m sure I’ll be in quite a state when the next Democrat Governor carries on the tradition...crashing my wheelchair into walls, refusing to eat my tapioca; yes, I’ll be causing quite the uproar at the retirement home.

Does the Legislature not have to approve at least Stras's appointment? This is where checks and balances on a politicized process would normally kick in.

And lifetime appointments are an attempt to at least weaken political influences; justices do often drift over the course of their terms.

Aren't they the obvious choices of a man who has run away ambition.
Why would anyone be surprised?
Pawlenty does not care about this state he only cares about That big house in Washington.

The only judge who should have recused himself from hearing the unallotment case is Chief Justice Magnuson.

Magnuson gave many speeches criticizing the government cutbacks within the judicial system. Most of those cuts came about through the cuts Pawlenty imposed through unallotment. He made no secret of his personal wish to have judicial spending increased.

It's rare that a judge would show personal predisposition before a case like that is argued before him.

He should have recused himself as he made his personal desire quite clear.

It's hard to take any of this liberal whining seriously when Obama has nominated someone for the U.S. Supreme Court who has no judicial experience. And frankly I don't see how Eric can write about this subject without mentioning the Kagan situation.

If you want to be taken seriously about TPaw's selection of Stras, then you better be arguing against Kagan, too. Otherwise, you're just a partisan hypocrite.

For me, both TPaw and Obama have the right to select who they want. That's the right you win when you win an election. That's one of the biggest reasons why gubernatorial and presidential elections are important.

Judge Stras doesn't really need to have much/any prior experience. He will occupy the "Clarence Thomas" seat and be a rubber stamp for his Republican colleagues.

Ed -

I understand and appreciate where you're coming from. Here are the differences as I see them:

The question really isn't judicial experience, but direct legal experience with the system they are now in charge of.

Stras - though undoubtedly a smart guy and capable legal analyst - hasn't practiced or, really, taught Minnesota law. (His U bio notes he's a specialist in federal practices. Look at his publications on his U bio: zero deal primarily with state-level courts.)

Kagan, on the other hand, has spent pretty much her whole career deeply immersed in federal law - she may have spent more time before the body she will join than many appointees.

I completely agree with you that both Stras and Kagan are political appointments from politicians constitutionally granted that privilege. No one, I think, is questioning the legality of what Pawlenty did. Or that, on some level, both Stras and Kagan are hacktacular.

Still, Pawlenty picked the far greener candidate, one with virtually no state paper trail save for his pro-Pawlenty unallotment brief. (If both appointments are, on some level, legal but vulgar, I would argue TPaw's was moreso.) It would be like Obama picking someone with primarily international law experience. You can imagine the outcry in some quarters if that happened!

What a nice, tight incestuous group. No fresh air there. When I read about Gildea, I thought Tim's rage is going way too far. How about an anger management course.
Even more, I find his complete disrespect and contempt for us and for the Legislature abhorrent.

Of course, one difference is that President Obama has to get his picks past the US Senate, and the Republicans can filibuster Kagan's nomination or play all kinds of procedural tricks to try to stop it.

In Minnesota, the Governor's pick gets no such scrutiny. His word is the final word.

Regarding Chief Justice Magnuson's advocacy for adequate funding of the Judicial Branch: There was no unallotment of the Courts. Once the Court's budget is passed by the Legislature and signed by the Governor, they can't be unallotted by the Governor. He can unallot executive agency department funds, but not the funds of the other two branches of government. Chief Justice Magnuson never advocated for or against unallotment, and there was no need for him to recuse himself.

A suggestion, if you will, in cases where the governor or other high state official is involved in the suit. What about having a neighboring state sit as the judges for this type of case? It would certainly knock out the potential for favors (future and past). I realize that the law and the constitution don't allow for this but if it's really a problem we could work on fixing that, right? As other posters pointed out, this will certainly happen again and I somehow suspect that the DFL would be in a similar position...

This is one area in which we should miss Jesse Ventura. He put in place a judicial appointment process that was a model of political impartiality and strictly merit based. I recall hearing Justice Paul Anderson, during a tour I took of the Minn. Supreme Court, speak about how highly regarded Ventura's appointment process was in the legal community.

As we see, that went by the boards with arrival of Pawlenty, who has made the process blatantly and aggressively political. I must say it is amusing to see a Republican politician enthusiastically engage in the politicization of the judicial appointment process, even while they love to carry on about "liberal activist judges" - a term bereft of any real meaning except "judges appointed by the other party".

Independent politicians are appealing in that they are not beholden to the interests and ossification of the major parties. I wish our system offered them a greater chance of success.

Peder's suggestion is interesting. I think it extremely unlikely that such a system would be put in place, but it's interesting to think about.

One step we ought to take is to amend the state constitution to require consent of the Senate for judicial appointments, just like the Feds. It tends to weed out the extremists in either political wing. It also promotes the concept of having three separate and co-equal branches of government. The credibility of the judicial branch's claim to that status really requires the involvement of both the executive and legislative branches in the appointment process. Having even the appearance of judicial branch subservience to the executive is Not Good(tm). (Granted that Chief Justice Magnuson's ruling on the unallotment issue demonstrates that judicial integrity is still usually the rule.)

Tim Pawelenty reminds me of that one bratty kid in the neighborhood who would tip over the Monopoly board when he didn't win the game.
I get shivers thinking of what he might do in Washington..

FYI Ed-

Chief Justice William Rehnquist did not have judicial experience prior to being appointed to the Supreme Court by Nixon.

Why should the Governor care how this looks? He has minimal concern for the Minnesota Republican Party and he'll be gone soon. His national fan base would be encouraged if he has a record of appointing partisans. Unlike some of our recent notable state Republicans he's unlikely to stick around the state after his term. I'm thinking his attitude is "who cares?".

I agree the MN GOP may have long term concerns with this. I just don't think that's Gov Pawlenty's concern anymore.

And yes, approval by the legislature would be an improvement. The Judiciary is the most important of the three branches for the citizens to respect.

I guess I'll have to be the cynic in this one.

In my thinking, anyone who believes that judges are impartial in the State of Minnesota has another think coming.

Over many years, as governor after governor has appointed to the courts persons carefully vetted to reflect their political thinking, and as judge wannabees have duly observed and been careful to court political favor in hopes of future rewards, our courts are populated for the most part by sycofants of those in power at the time of their appointment.

There is re-election, of course -- but think about how seldom it is that judges run for their seats opposed. Most voters just skip that part of the ballot, because they don't know any of the candidates.

If you want to be a judge, in Minnesota at least (and in other juridictions as well, I suspect), you must pay your POLITICAL dues. And this will color your decisions for as long as you sit on the bench.

Judges do not, after all, administer justice. They administer the justice SYSTEM. For justice, one must look elsewhere. Stay out of the courts.

So who is appointed, and why, and how it affects the hopes for justice in our courts are, in my thinking, pretty much irrelevancies.

Makes good political fodder, though, as politicians and punsters jockey for advantage.

It is very difficult to look at the state of our state, in any of the last 6 or 7 years and point to anything positive. There are a lot of negatives. One of our major bridges fell to the Mississippi river. Here in the great state of Minnesota! I never thought I'd see it, but I did. Its where we are today in this state. If we had an honest , less civil, media the bridge and numerous other failures would been laid at the feet of Governor No Tax Pawlenty and his no new tax cronies. You just don't get something for nothing folks. You have to pay for them. Now look at Pawlenty's actions in the current budget debacle and you can see we are headed for disaster. It will get worse and worse. Any sane person can see that.

Please Eric feel free to comfort yourself by claiming that while you were a media person, who had some influence in the discussion and maybe moving the out come in a more positive direction, that you may have chosen stand by and watch our beautiful state crumble atleast you did it in a civil manner.

Henk:

It only took 22 comments to get from judicial appointments to the bridge collapse.

Being a component of an interstate highway, the new bridge was largely funded by federal dollars. Local municipalities, including Minneapolis and Hennepin County applied for and received federal aid for infrastructure stress due to the bridge's absence.

That is quite a stretch to lay the collapse of a federally inspected bridge at the feet of Pawlenty. If the 10th Ave. bridge, directly adjacent, had collapsed, that would be an easier sell.

If you want to be objective and check their resumes/accomplishments there's no doubt Ms. Kagan is subtantially more qualifed than Mr. Stras, just look at the respective life experiences. If you just want to play politics and word games you can play it any way you want.

Ms. Kagan's post is two orders of magnitude higher than the post of Mr. Stras.

While comparing their resume's, you can validly argue that Ms. Kagan is more qualified than Mr. Stras to be a Supreme Court Justice of the United States. However, no case has been made that she is more qualified for the SCOTUS than Mr. Stras is to be an Associate Justice of the Supreme Court of Minnesota.

The bottom line on this discussion: At the federal and state levels, the chief executive appointing justices is a component of the balance of power between the branches. The chief executives you don't like are apt to make appointments you don't like.

Considering that Justice Thomas is simply too inept to even be allowed to write opinions for the Supreme Court it is a scary option indeed to know David Stras has clerked for him and that experience is his main qualification for serving on the State Supreme Court. In addition Thomas and Scalia are the Court's most ideological zealots just after the purveyor of privlage, Chief Justice Roberts. David Stras is no doubt in this camp having passed through the conservative ideologue litmus tests to reach his position. Republicans have always appointed the most political of legal minds and kept a strait face while they called them "strict constructionists". It is how we now have the most activist court possibly in judicial history. Pawlenty, after destroying state government with his rigid and ideological, incompetent approach to managing the budget with "no new taxes" has left another mess for the next governor to deal with, a stacked Minnesota Supreme Court composed of conservative radicals and small legal minds.

Now we know why it's a good idea to subject out Judges to elections.