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Why Minnesota’s judicial selection system needs a fix

Something needs to be done to fix the current judicial selection process.

Minnesota’s judicial selection process is broken. The reasons it is broken are multiple, and the solutions to fix it — along with the will to do anything in the Legislature — are poor and minimal.

schultz portrait
David Schultz

The first problem with the judicial selection system is that it is fails to operate the way the framer’s of the Minnesota Constitution intended. They wrote a constitution in which Article VI called for an elected judiciary, but the governor may appoint to fill vacancies if they occur. Their intent was for judges to be elected. But studies have shown that approximately 90 percent of all individuals who become a judge in Minnesota do so initially by gubernatorial appointment, thereby circumventing the election process.

Second, when elections do occur, rarely are they contested. And when they are, because judicial candidates do not really campaign or take positions on issues, most voters have little information on whom they are voting for. Studies indicate that more than a quarter of Minnesotans opt not to vote for judges, or simply vote based on familiar-sounding names that are Nordic. In the 2014 State Supreme Court race between incumbent David Lillihaug and his challenger, Michelle MacDonald, their vote total was 27 percent less than the total votes cast in the general election. Given the dismal overall turnout in 2014, only 37 percent of the eligible voters cast ballots for the winner, Lillihaug.

Third, as a result of a U.S. Supreme Court and Court of Appeals decision, Minnesota judicial elections are a disaster waiting to happen. These decisions lifted bans on campaigning and taking positions on issues, and they also invalidated  restrictions on fundraising and partisan endorsements. Minnesota has no public financing mechanisms for judicial candidates. This makes judicial candidates often highly dependent on donations that largely come from lawyers, many who often appear before them.

High-stakes, partisan contests in several states

None of this is good. Across the country in places such as Wisconsin, Texas, and Illinois, judicial races have become high-stakes, partisan and expensive adventures as interest groups increasingly see state courts as an important forum to resolve questions about gay marriage, abortion and business-regulation issues. While we might like to think Minnesota is different, it is perhaps only a matter of time before the problems seen elsewhere hit this state.

Finally, the current selection process fails to produce diversity on the bench. Diversity means many things, not just the racial or gender identity, but diversity in perspectives. Again there are studies suggesting that the current judicial selection process is insular, failing to reflect the diversity in the state.

So what is the solution? Some hold out for a process that is nonpolitical. Given how important courts have become in our society, the belief that any selection system will be apolitical is a fantasy. Instead, a viable judicial selection system must balance four goals: merit, impartiality, accountability and diversity. Minnesota needs a system that leads to the selection of the most qualified individuals to serve as judges, who also will render impartial justice, stand accountable for their decisions, and reflect the diverse demography and perspectives of its citizens.

A few options

One solution is to do nothing, figuring that the status quo is fine or that there is nothing wrong with politicizing judicial elections. But for reasons noted above, the status quo is broken. Moreover, politicizing the bench even more does no one any good. Politicized courts run the risk of undermining public confidence.

Another option, advocated by the Minnesota State Bar Association and the Coalition for Impartial Justice, seeks a constitutional amendment to create a merit selection process. The governor would make an initial judicial appointment and then the judge would stand for an uncontested retention election a year or so later. This is what used to be called the Missouri Plan. At one time such a plan worked, but as the experiences of states such as Iowa show, retention elections still can be high-spending politicized events where judges are removed not because they did a bad job but because they rendered a decision unpopular to a particular interest group.  In a changed political environment, the Missouri Plan no longer is viable. If you are going to ask the public to amend the state constitution, it makes no sense to propose an idea that is already broken.

A third solution is to scrap judicial elections and replace them with some type of appointment system. Many think the model is similar to what we have for federal judges, where the president appoints judges for life subject to Senate approval. This process also is broken and politicized, and many increasingly argue that lifetime tenure fails to bring needed change to the courts or that presidents stack the bench with their friends or fellow partisans. But there are other possible appointment options, those that include fixed judicial terms or limits on gubernatorial selection.

Something needs to be done to fix the current judicial selection process, and there are viable solutions. Unfortunately, there seems to be no interest at the Minnesota Legislature to do  anything, and the options that have been proposed are deficient.

David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take

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Comments (8)

  1. Submitted by Hiram Foster on 01/12/2015 - 06:01 am.

    The case

    Professor Schultz seems to have forgotten to make a case here. Is the status quo a problem? Are we suffering from a plague of lousy judges here in Minnesota? I don’t actually know myself, and the professors isn’t particularly enlightening on this issue. He does inform us without much support that our bench suffers from a lack of diversity in all sorts of different ways. That maybe is true but so does the pool of lawyers from which we choose judges. Their perspective tends to be from the law which, whatever it’s merits, is a sadly limited one. Our current US Supreme Court has made many decisions which prove that point. In any event, it’s hard to see how any of the appointment processes the professor discusses would solve the diversity problem.

    More broadly, the professor seems to suffer from a basic contradiction. His objection to the status quo is that it doesn’t follow the constitution in the matter of elections. Well, we do have elections for judges. The last time I voted the ballot was full of them, including in my area, several hotly contested races. If, in the professor’s view, it’s not working well, at least it’s working. Maybe it hasn’t produced the diversity of judges some might like, but that’s an argument you can make about the election system as a whole. Is that a compelling reason for abandoning it. And as the professor himself points out, the election system which he, on the one hand, criticizes for not being fully implemented under the constitution, and on the other hand, he thinks should be replaced, is perfectly capable of being abused in the manner he describes.

    Churchill famously, if possibly apocophylly observed that democracy is the worst system of government except for all the others. Could it be true that Churchill’s sentiment is correct when applied to the admittedly problematic way in which we select judges?

  2. Submitted by Alan Muller on 01/12/2015 - 11:38 am.

    Judicial selection

    I don’t know about Minnesota specifically–I think we need some data on the make up and characteristics of the state’s judiciary.

    But in general it appears to me that the right-wing-big-money-forces-of darkness have been tightening their grip on the courts, like everything else, reducing the chances of justice for humans being dispensed. Is Minnesota an exception to this? Somehow I doubt it.

    A key problem in most places is that the judiciary, far from being independent, operates as a branch of the bar and courtrooms are run as employment agencies for lawyers…..

    Many important issues here.

  3. Submitted by James Hamilton on 01/12/2015 - 07:26 pm.

    Did we only get half the article?

    Professor Schultz wrote, “Something needs to be done to fix the current judicial selection process, and there are viable solutions. Unfortunately, there seems to be no interest at the Minnesota Legislature to do anything, and the options that have been proposed are deficient.”

    Having told us why, in your opinion, these options are deficient, I’m waiting to read what you think the “viable solutions” may be.

    I’m particularly interested in what you consider to be diversity and how you anticipate addressing that in Greater Minnessota or whatever rural Minnesota is called today. Presumably, you intend to require that judges be licensed attorneys.

  4. Submitted by Hiram Foster on 01/14/2015 - 12:06 pm.

    Here’s the deal

    I am a very political person with some legal background. In talking with a lot of people in a political context, I don’t hear a lot of complaints about judges in Minnesota. Judicial selection is more of an issue with Republicans, but I think that reflects more of a concern with what happens in the federal system and at the Supreme Court. That’s very remote from what happens on a day to day basis at the state court trial level.

    Are there a lot of specific complaints out there? Horror stories about local judges? I haven’t heard or read of any, but then I am not very connected and I don’t know if I would. What I haven’t noticed is a lot of partisanship in the selection judges. I have on several occasions asked by local legislator if judicial nominees have been much of an issue at the state legislature. He says there hasn’t been, and that includes periods of time when the governorship has been held by the other party.

    IMO, the outstanding Minnesota jurist of recent years was Chief Judge Magnuson, and he was a Republican appointee and pretty much the poster child for a lack of diversity.

  5. Submitted by Peter Nickitas on 01/14/2015 - 10:54 pm.

    Judicial elections

    The issue is a fascist solution in search of a problem. It reminds me of Groucho Marx in “Horsefeathers” addressing students: “You want to abolish wage slavery? I know how: abolish wages!”

    The judiciary is the second most anti-republican branch of government, next to the executive. As precedents in the past forty years giving police and military greater leeway and freedom from accountability under the law, the judiciary condones executive arrogation of power, just as priests blessed knights’ lances before they went off to the Crusades, or before Conquistadores spread mayhem and murder amongst the indigenous peoples of North and South America.

    You want money out of elections? Don’t abolish elections. Put public money INTO elections, including generous television, radio, and internet campaign time for incumbents and challengers alike. Wisconsin once had a good public finance system for appellate courts, as did North Carolina, until tyrants clearing the way for big money abolished the programs.

    Judicial elections, where possible, such as in large counties, cannot be winner-take-all, one-on-one races. A lawyer who challenges an incumbent judge and loses will have rough sailing before that judge. A lawyer who challenges an incumbent and wins is likely to be a courthouse pariah for being a successful “upstart.” Thus, to minimize the vengeful incumbent scenario, judicial elections should be ranked choice voting, cumulative voting, or approval voting ballots.

    Finally, the simplest and most tried-and-true criteria for judges are in Exodus and Leviticus — a judge must be fair, impartial, pursue truth, and, above all, neither automatically incline towards the poor nor kiss the hind ends of the high and mighty.

  6. Submitted by Hiram Foster on 01/15/2015 - 07:50 am.

    The problem

    One of the things I like to say is before engaging in an extensive and time consuming search for a solution, at least some consideration should be given to determining what the problem is.Is there a problem with our judicial selection system, and if so what is it? Professor Schultz identifies two problems. First, that our existing system, in effect, is conflict with the spirit of constitution provisions for the election of judges. His second problem is that he doesn’t like the election of judges. The professor doesn’t seem to be too disturbed by the possibility that the two problems he addresses might be inconsistent with each other. He goes on to raise a third issue about lack of diversity, which is pretty much the standard complaint I make about elections when my guys don’t get in.

    To my cynical way of thinking, the underlying and nearly universal problem with judges we have is that they make decisions we don’t like. And what’s the solution to that? My answer is to engage the system in various ways such that judges and justices who are more likely to agree with me. In other words, as I often say to my Democratic friends, if you don’t like the fruitcakes Republicans put in the courts, work harder to elect Democrats.

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