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Judicial candidates should be less partisan and more representative

Joan Growe

As Minnesota’s secretary of state, I took pride in our state’s tradition of civic participation. Minnesotans of all political persuasions understand that, whether we’re choosing a president or a state legislator, we deserve a government that truly represents us. And we are willing to do the hard work democracy demands in order to achieve it. 

Although we do not directly elect the members of our judicial branch of government the same way we do the members of the executive and legislative branch, we expect the same when it comes to judges. Regardless of our political persuasions, we all want judges who rely on their experience and their study of the law, not their ideological priors. And we all trust that, if we are involved in a legal proceeding, we will feel comfortable that the judge who decides our case both understands our own unique perspective and also fairly represents the best of our collective wisdom and expertise.

This is especially important when it comes to our federal appeals courts. These courts are the last stop before the Supreme Court, and their decisions affect every aspect of our lives, from our rights at work to our civil rights to our health care. 

The Stras nomination

That is why the controversy over the nomination of Justice David Stras to serve on the Eighth U.S. Circuit Court of Appeals matters so much. Democrats have noted that, despite his relative youth, Stras has already established himself as a conservative legal thinker – and so, too, have conservatives, who have put him on a shortlist of future Supreme Court justices they believe will reliably support their far-right agenda.

Indeed, in their rush to pack our courts with activist conservative judges, President Donald Trump and congressional Republicans have cast aside long-held procedures that were designed to protect the impartiality of the federal bench, including the “blue slip” process that allows home-state senators participate in selecting judges who best represent their states’ citizens. This dangerous trend is part of the reason why, like former Vice President Walter Mondale and many others, I applaud Sen. Al Franken for taking a stand against inappropriate politicization of the judiciary by opposing Justice Stras’ nomination.

But that is only part of the story. The Trump administration’s continuing refusal to consult with home-state senators before nominating judges threatens to make our courts not just more partisan, but less representative.

Women remain underrepresented

I was elected secretary of state at a time when women were rarely allowed to achieve positions of political leadership. Today, of course, the idea of a woman holding statewide office is far from revolutionary. But women remain underrepresented in leadership positions – and when it comes to our legal system, there is reason to worry that, with Trump in the White House, the problem is getting worse, not better.

It took more than 100 years before a woman, District Court Judge Diana Murphy, was named to sit on the Eighth Circuit Court of Appeals. Judge Murphy would remain the only woman on the court for nearly two decades, and with her move to senior status this year, the 11-judge panel will again be left with only a single female jurist in active status. This contrasts sharply with our Minnesota state court system where we have a proud history of women serving our state well from the bench — from Rosalie Wahl to the current majority-women Minnesota Supreme Court.

Like that of every other state, Minnesota’s legal community boasts many high-quality women of all political stripes in positions of leadership. But three times since he took office, President Trump has had an opportunity to nominate one of these women to the Eighth Circuit, and three times, he has chosen not to do so.

Part of a pattern for Trump

This is part of a pattern. For example, Trump has nominated 42 people to serve as U.S. attorneys for districts across the country, only one of whom is a woman. And this exclusionary practice is not only unfair to the many capable female attorneys who are being repeatedly passed over – it is unfair to everyone who comes before the court and every Minnesotan whose rights are affected when this panel issues its rulings.

After all, we need the highest possible quality people in these positions of great importance – the wisest, the fairest, those most capable of making seismic decisions on behalf of the entire citizenry. It seems unlikely that so few women qualify. Moreover, diversity on the bench is critical in helping the court understand the many different kinds of experiences and perspectives represented in cases that come before it.

In other words, for us to continue to have faith in our judicial system, we must be confident not only that it is free from partisan influence, but that it truly represents us – that the judiciary looks like the people it serves.

Trump’s disregard for the long-established safeguards governing our judicial nomination process will not bolster that confidence. But Franken’s bold commitment to restoring those protections can. By objecting to Stras’ nomination, he is laying down a marker to declare that we must return to careful bipartisan consideration of potential judges. Only such a return to form will ensure that our judiciary is independent, fair – and representative of the diverse and engaged state I have been so proud to serve.

Joan Growe is a former Minnesota secretary of state, serving from 1975 to 1999. 

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Comments (31)

The law

Something to understand about the law is that it is not rocket science. People don't go to law school because they found physics or mathematics too easy. Don't murder, don't steal, and don't drive 80 miles an hour on a freeway are about as complicated as legal concepts get. Most brilliance in legal thinking is dedicated to finding obscure ways around such basic principles, and while such talents might be good for generating legal fees, using them is rarely in the public interest. Brilliant legal thinking is just about the last thing America needs today on the federal bench.

"Brilliant legal thinking"

"Don't murder, don't steal, and don't drive 80 miles an hour on a freeway are about as complicated as legal concepts get." I take it you have never been involved in litigation, or legal matters of any kind.

If it were just a matter of keeping a few commandments, "brilliant legal thinking" would not be needed. However, before we can decide if the person murdered someone, we have to figure out if there were any mitigating circumstances or defenses. Before we know that she stole something, we have to know if the police officer who arrested her had the proper legal authorization to search for the stolen goods. Speeding on the freeway is a simple case, but what if there are objections to delegating the police power of the state to a private concern (City of Cedar Rapids v. .Leaf, now pending before the Iowa Supreme Court)?

I'm not even going to address civil law. Read any good antitrust cases lately?

"Most brilliance in legal thinking is dedicated to finding obscure ways around such basic principles . . ." Well, no, but that's not important. What is important is what you might call "getting around basic principles" others may call "ensuring that everyone follows the entire letter of the law."

Correct, the law is not rocket science because...

it has too much nuance and interpretation. Lawyers are problem solvers and creative thinking is required.

Silly....

We need quota's for judges regarding gender, race, grade point average, rural-urban residence, private -public education, immigration status, and sexual orientation.

We need less partisanship regarding judicial nominations.

Also - white, conservative males need to apply.

Why?

"Also - white, conservative males need to apply." Only white males who happen to be conservative? What if there were an African-American woman who was also conservative--should she not apply?

Groan...

Is it right to cast aside a white male candidate because there may be a female or a minority with similar qualifications? I hope we don't become a country of quotas.

An article in the Strib said "Both peers and court watchers alike described Stras as a conservative who defers to the law as its authors intended — not ideology — to shape decisions. In a 2013 dissent, joined by more liberal Justices Helen Meyer and Paul Anderson, Stras wrote that a statute criminalizing false reports of police misconduct violated the First Amendment."

Stras's nomination was supported by the diverse group of Alan Page, Helen Meyer and Paul Anderson. A group not generally viewed as conservative.

By all accounts, Stras is qualified. If he were a black female, this argument most likely would not be happening and people like Joan Growe would not be darkening the discussion.

What does it mean to be a "conservative jurist"?

I wouldn't have any problem with any nominees if they weren't being touted for their "conservative credentials." What exactly is that supposed to mean? What I take it to mean is code for "anti-Roe v. Wade, anti-gay rights, pro-big business, pro-corporate rights, pro-insurance industry and anti-living, breathing, fallible human being." A "conservative jurist" is one like in a recent Wisconsin Supreme Court decision denied unemployment compensation to a truck driver who was fired after taking some time off to assist his father in his last days dying of cancer. This a case where the truck driver had won benefits in every lower court and the unemployment compensation department. A "conservative jurist" is one who like our "brilliant legal mind" Chief Justice John Roberts who wrote a 2004 decision while on the D.C. Circuit Court of Appeals upholding the arrest of a 12 year old girl for eating a single french fry. A "conservative jurist" is one who upholds the majestic law that forbids equally the rich and the poor for begging, stealing loaves of bread and sleeping under bridges.

"Both peers and court

"Both peers and court watchers alike described Stras as a conservative who defers to the law as its authors intended — not ideology — to shape decisions." (a quote from the Star Tribune, apparently)

This is a definition of a legal, or Constitutional, originalist--one who believes that whatever the original language of the U. S. Constitution says, literally, is the principle that must rule in decisions: ". . . defers to the law as its authors intended."

That is an ideology. A legal ideology or philosophy (same thing).

Such thinking is extreme right in its bent, and fiercely denies that society has evolved since 1789. You can pretend all you want that insisting on original language is not ideologically tinged conservative , but that doesn't persuade in 2017.

A U. S. Senator from a "blue " state who was not consulted by the president before nominating an appeals court judge has the right to call out an extremely conservative nominee when he sees one. And Mondale and Growe are to be thanked for elaborating on the reasons this is so.

Hi Constance,You know, one

Hi Constance,

You know, one of the defining characteristic of a banana Republic is their penchant for re-writing their constitution's every time a new tin pot "savior of the people" makes his way to power.

The other charartaristic is their short lived tenures.

Could our refusal to wring new meanings out of our founding document every time popular culture declares we've evolved, be a contributing factor to our longevity? I think so.

The truth is, the things that were important to people in 1788 are still things Americans cherish today. The authors of the US Constitution did a great job.

Interesting Thought

"You know, one of the defining characteristic of a banana Republic is their penchant for re-writing their constitution's every time a new tin pot "savior of the people" makes his way to power." Another is politicizing the judiciary every time some tin pot who declares that he alone can save the country assumes power.

If we're not supposed to, as you put it, "wring new meanings out of our founding document every time popular culture declares we've evolved," that must mean that constitutional interpretation is also written in stone. Plessy v. Ferguson should still be the law of the land, by that reading.

"The truth is, the things that were important to people in 1788 are still things Americans cherish today." An agrarian economy that tolerated slavery and denied basic rights to women? Many, if not most of us, have evolved past that. You're welcome to join us.

"If we're not supposed to, as

"If we're not supposed to, as you put it, "wring new meanings out of our founding document every time popular culture declares we've evolved," that must mean that constitutional interpretation is also written in stone."

Well no, RB. That is the whole purpose behind standing by original intent. Plessy created a whole new framework to skirt the 14th amendment. Brown v Board of ed. set things right.

It is the hope of anti-abortion folks that Roe can be set straight in the same way; ie: we cannot create rights out of thin air.

"Many, if not most of us, have evolved past that."

Strict adherence to logic and original intent makes constitutional conservatives proof against polemics, RB. The political divide in America has given rise to the Homer Simpson school of debate. It has become quite popular on the left, but even there, calm, serious thinkers do not engage in it.

Most folks, even amongslave holders didn't need to evolve to know slavery is wrong. But given that the basic rights many claim women have today includes the right to end the life of their unborn children, no questions asked, I aver some evolution of thought may be in order for the sake of humanity. But I stand firm against such evolutions having effect against the original intent of the framers.

Thin Air Indeed

Corporations, according to SCOTUS and the John Roberts who once declared that he would simply call balls and strikes, are people. Though apparently the only people in the US not subject to the death penalty.

One cannot claim to be an originalist, and decry the creation of a right out of whole clothe via Roe V. Wade, and declare that corporations are people.

Originalism is a complete sham.

Corporations are people but

Corporations are people but unborn children are not.

Win some; lose some, eh?

But answer me this. Are Corporations not a group of, wait for it....people, that have organized themselves to do business?

And are these groups of people not taxed on the profits their organization creates?

And wasn't taxation without representation not one of the grievances identified as a justification for the American colonies to sever their ties with the English crown?

Real Thin Air

“But answer me this. Are Corporations not a group of, wait for it....people, that have organized themselves to do business?” One might say that. One might also say that arguing corporations have constitutional rights is an embodiment of a “living Constitution theory.” The Founders would have had no concept of the modern business corporation. In their time, corporations operated under charters granted by the legislature, and were either charitable entities or infrastructure operators. The governance of those corporations was regulated in a way most businesspeople today would find unthinkable (in case you’re wondering, I get all this from a blog post from the dangerously left-wing Harvard Business Review--https://hbr.org/2010/04/what-the-founding-fathers-real.html)..

“And are these groups of people not taxed on the profits their organization creates?” No, they are taxed on their accession to a sum of money. It’s not the same as cutting a piece out of a coin.

“And wasn't taxation without representation not one of the grievances identified as a justification for the American colonies to sever their ties with the English crown?” That’s a convenient catch-phrase remembered by those who don’t like to look at the facts closely. Whatever they may have said, the Founders knew well that most British subjects had no representation in Parliament. They really objected to the taxation.

Well, No, CS

" That is the whole purpose behind standing by original intent. Plessy created a whole new framework to skirt the 14th amendment." Plessy was one of the first cases to construe the Equal Protection Clause 14th Amendment. It overruled nothing. Arguably, Plessy created the "framework" for interpreting the Clause.

"Strict adherence to logic and original intent makes constitutional conservatives proof against polemics, RB." It also seems to make them impervious to reality:

You are assuming that we can ascertain the original intent of the drafters of the Constitution. Good luck. In reality, there were 55 delegates to the Constitutional Convention, coming from different states at a time when the differences between states were more pronounced than they are now. The end result was a document shot through with compromises.

Here's a good example of the intellectual shortcomings of the originalist school. District of Columbia v. Heller, a decision of which I'm sure you approve, relied heavily on historical arguments in both Justice Scalia's majority opinion and in Justice Stevens's dissent. Which analysis you find more compelling probably depends on your predisposition on this issue. The decision was 5-4, meaning a shift of one vote would have made the "official" interpretation of the original intent behind the Amendment entirely different.

The other shortcoming is the internal contradiction involved. Why does anyone think the drafters of the Constitution would have wanted Americans to be bound by their reading of the document 200+ years later? There are intentionally vague terms used throughout ("due process;" "unreasonable;" "cruel and unusual"). As I'm sure you can appreciate, these were smart men. Why did they not use more definite terms if they wanted their interpretations to prevail for all time?

Finally, your own argot belies the idea of originalism. You refer to "constitutional conservatives." What does that term mean? If the issue is what the drafters intended, words like "conservative" or "liberal" should have no meaning.

"The political divide in America has given rise to the Homer Simpson school of debate. It has become quite popular on the left, but even there, calm, serious thinkers do not engage in it." As opposed to conservatives, who rely on calm,. reasoned arguments. Except for President Trump and his acolytes, right?

"Most folks, even amongslave holders didn't need to evolve to know slavery is wrong." Take a gander at Chief Justice Taney's opinion in Dred Scott. It relied heavily on popular opinion in support of its argument. And . . . now that I think of it, wasn't there a war fought because some states wanted to protect slavery? Or is that more fake news?

"Inarguably, Plessy created

"Inarguably, Plessy created the "framework" for re-interpreting the Clause."

FTFY, RB.

"Why does anyone think the drafters of the Constitution would have wanted Americans to be bound by their reading of the document 200+ years later?"

Well RB, because to think otherwise necessitates believing men who had risked their lives to create a free country sat down and agreed to toss some suggestions down on parchment that folks should feel free to interpret as they please. To believe that necessitates relagating men whose intellect shines brightly 200+ years later to the ranks of imbeciles.

The founders fought a war to write the Constitution, RB. Why does anyone think they would have wanted their legacy in the hands of people that wouldn't fight another to protect it?

"Inarguably?"

Words like "inarguably" (or the preferred "unarguably") have no place in this kind of discussion.

Plessy was the first SCOTUS analysis of the Equal Protection Clause, so it was not a "re-interpretation."

"The founders fought a war to write the Constitution . . ." No, they did not. They fought a war for independence and created a loose confederation of semi-sovereign entities to prosecute that war. The Constitution came later, when it was apparent that a strong centralized government was needed.

Ratification of the Constitution was by no means unanimous among the Founders. I recommend that you look up the Anti-Federalist Papers.

Justice

The vast majority of what Supreme Court justices spend their time on is of no real significance to the American people. And brilliant as their legal minds might be, it's just about always the case that the legal perspective with which they approach disputes has no relevance to the real issues in the case. In the vast majority of instances, what our Supreme Court is really good at is being beside the point.

President Trump, during his campaign, was very specific and detailed in making the point that his justices would be entirely selected for exclusively political reasons. He made it clear that he would make his picks based on their presumed willingness to make specific judgments on specific cases that would please his political backers. That being rather indisputably the case, it makes no sense at at all to evaluate his picks on something other than the basis on which he chose them. It really isn't a matter of qualifications, or of legal "brilliance". It's a question of we want judges and justices who will deliver on the political promises their nominator made on their behalf.

Significance?

"The vast majority of what Supreme Court justices spend their time on is of no real significance to the American people."

I think you need to do some homework. Check out some of what the SCOTUS has done in the last several decades.Off the top of my head:

Bush v. Gore
Shelby County v. Holder
Miranda v. Arizona
Gideon v. Wainwright
Griswold v. Connecticut
Roe v. Wade
Brown v. Board of Education
Swann v. Charlotte-Mecklenburg Board of Education
US v. Darby; etc.

It needs to be remembered that the cases coming before any court, however high or low, have real world consequences. They are not just academic exercises.

Also Consider

The cases they did not choose to take up.

Good morning Hiram,I agree

Good morning Hiram,

I agree with your assessment. In fact, Trump bought my vote with the promise to nominate a Constitutional conservative to the SCOTUS. He followed through on that promise, so at this point Trump don't owe me nothing.

But in the larger view, I think that people who expect anything other than litmus tests for candidates of any public office are either deluding themselves or lying to others.

Remember the celebration when Obama nominated a "wise Latina"?

The left chooses it's leaders by innate characteristics that have no bearing on their fitness for the position. Conservatives choose solely on records of achievement, intelligence and philosophical agreement, irrespective of race, gender or any other innate characteristic.

Personally, I think that has a lot to do with why the GOP is firmly in control of the country, and why the Democrats are wandering around in the woods, cursing the trees.

Interesting how the Conservatives

who choose "solely on records of achievement, intelligence and philosophical agreement, irrespective of race, gender or any other innate characteristic" generally find that only while males meet all of those standards. I don't believe in quotas, but Conservatives are pretty myopic when it comes to race and gender.

Conservatives and Quotas

When the quota was "all white males," there was no problem.

Your statement had no basis

Your statement had no basis in fact. I could post a lengthy list of GOP leaders of all genders and races, but Senator Tim Scott has spoken out against such pandering, and I respect his judgement.

Litmus tests

I have no problem with litmus tests. The politicization of the court has been complete. The problem I have with Democratic nominees is they don't satisfy the litmus tests I would impose. Note how vulnerable so many establishment Democrats are to the argument that they should go along with the Stras nomination simply because he is "qualified", one of the least significant qualities any judge could have. Give me an Earl Warren, possibly the least qualified justice in American history.

Bush v. GoreShelby County v.

Bush v. Gore
Shelby County v. Holder
Miranda v. Arizona
Gideon v. Wainwright
Griswold v. Connecticut
Roe v. Wade
Brown v. Board of Education
Swann v. Charlotte-Mecklenburg Board of Education
US v. Darby; etc.

Not that great of a record of achiewvement over 230 years, is it? And of course some of those decisions went to undo the damage it's previous, very long lasting, precedents had done.. Dred Scot an Plessy v. Ferguson come to mind.

Should we really be satisfied with a system that took nearly two hundred years to figure out that states shouldn't ban birth control, should provide a someone charged with a crime a lawyer, and picked George Bush as a president. And apart from the last one, how confident can any of us be that the current, extremely politicized TrumpCourt will uphold those precedents?

Not Confidence Inspiring, No

On the other hand, these are all illustrations of cases that had a real impact on the lives of ordinary Americans.

On the other hand, these are

On the other hand, these are all illustrations of cases that had a real impact on the lives of ordinary Americans.

And how many of them required a brilliant and qualified legal mind to decide? How much does clerking with Justice Thomas really help us understand that a guy charged with a crime needs a lawyer? Do you really need to go to Harvard Law to understand that school segregation is wrong? Does it take a brilliant legal mind to figure out your congressman has no place in your bedroom unless you are married to him?

Well . . .

"And how many of them required a brilliant and qualified legal mind to decide?"

You are arguing from policy, which is fine. Now, try arguing from the constitutional standpoint.

"How much does clerking with Justice Thomas really help us understand that a guy charged with a crime needs a lawyer?" Ask a random group of Americans how many of them think their tax money should be used to pay for lawyers for criminal defendants.

Interestingly, the Attorney General of Florida pleaded with help from his fellow AGs in opposing Gideon. Walter Mondale, then Attorney General of Minnesota, was moved by that plea to circulate another letter urging support.

"Does it take a brilliant legal mind to figure out your congressman has no place in your bedroom unless you are married to him?" Again, no, if only because Rep. Ellison is already married and my wife would not approve. Now, try making a constitutional argument out of that. Remember that legislatures in many states had decided that outlawing the sale of contraceptives was good, sound policy.

try making a constitutional

try making a constitutional argument out of that

The Bill of Rights is quite explicit that defendants in federal court have a right to counsel. What Gideon v. Wainwright did was extend that right to defendants to state courts. It's quite easy to come up with constitutional arguments that justify that holding, and it's not that difficult to make arguments in opposition to the holding. It's pretty darn clear that the Bill of Rights, was intended to apply to the federal, not to state or local governments.

The fact is, Gideon was decided not because of any sort of brilliant legal scholarship that discovered a previously unknown view of the matter from the drafters, rather it was the result of a court which simply made a policy judgment that defendants in state courts should have lawyers even if they couldn't afford them. The constitutional arguments were simply framed around that prior policy choice.

You are arguing from policy,

You are arguing from policy, which is fine. Now, try arguing from the constitutional standpoint.

Policy is what matters. And the constitution isn't a policy document. The notion, for example, that these men of 1787 who lived in a world where leeches were an essential part of medical care, and where brain surgery was a profitable sideline for barbers, had something interesting or important to say about health care in the 21st century is beyond absurd. Only a "well qualified" lawyer is capable of believing something so foolish.