Should Minnesota stick with the current system of choosing judges by competitive elections and maybe even make judicial elections more similar to elections for other offices by allowing judicial candidates to run as partisans?
Or should the state switch to a system in which judges are recommended by a panel of experts, appointed by governors to vacancies on the bench, and face the voters only in retention elections in which the incumbents do not have opponents? Under this plan, which has been proposed by a commission but could be adopted only by a state constitutional amendment, the voters would decide whether to retain the judge for another term or remove him or her from the bench.
That was the topic of a lively panel at the Humphrey Institute in which the panelists came about as close to calling each other names as you ever hear at a Humphrey panel, and the audience got as close to rowdy as I’ve ever seen at a Humphrey panel.
Eric Magnuson, former chief justice of the Minnesota Supreme Court and an advocate of the appointment/retention deal, said that if judicial candidates take positions on issues during campaigns and then raise big bucks from groups that have an interest in matters that may come before them in court, the public’s confidence in the impartiality of the justice system will be badly compromised.
Normally politicians run on platforms promising that if elected, they will advocate for positions that the voters favor, from better health care to lower taxes, Magnuson said. But a judges’ platform must simply be that he will decide cases impartially and according to the law.
Who wants to appear in front of a judge who has committed to a particular position on an issue that might arise in your case? Magnuson asked. When you go in front of a judge, you’d like to feel that the playing field is level.
Turning judicial campaigns into partisan dogfights will create the opposite situation. Judicial candidates won’t be dumb enough to make campaign promises to rule particular ways on issues that might come before them in the courtroom, Magnuson said, but they are gonna use buzz words and catch phrases and they’re gonna appear before particular groups in order to raise money. That’s what competitive elections are all about. Campaign spending in judicial elections is rising fast, Magnuson said, inevitably creating the impression that the winning candidate will be influenced by the interests of their contributors.
Do you want that element, that bad smell, injected into your choice of judges? Magnuson asked. The question won’t be whether you’re going to appear in front of a good judge or a bad judge. The question increasingly will be whose judge are you going to appear in front of?
If you lose a case in front of a judge but you think that judge had an open mind and heard you, you’re gonna have a far different opinion than if you lose a case in front of a judge and you suspect that that judge owed an allegiance to somebody who wasn’t you, Magnuson said.
The second panelist to speak yesterday, attorney Greg Wersal, is the leading public face of the opposite approach. Wersal was the successful plaintiff in a landmark 2002 case that led the U.S. Supreme Court to decide (by a 5-4 ruling) that “announce clauses” of judicial ethics codes (which prevent judicial candidates from stating their views on how cases should be decided) violate the First Amendment rights of the candidates.
Wersal has run for the Minnesota Supreme Court three times (always opposing an incumbent justice, most recently this year, always unsuccessfully).
The appointment/retention system, Wersal said Thursday, would be nothing short of a disaster and a constitutional malpractice.
The key to better judging is not to shield judicial selection from democracy but to make the process more democratic and competitive by allowing judicial candidate to appear on the ballot with a partisan designation, Wersal said. (He is now active in a case that seeks to allow such party designations. He also believes the ballot should not indicate whether one of the judicial candidates is an incumbent. Under current Minnesota law, only judicial candidates are labeled on the ballot as to their incumbency status.)
Somehow we have to hold judges accountable, Wersal said. In his own experience as an attorney, he said, he has appeared before judges who are rude, judges who treat the litigants like dirt, who treat the attorneys like dirt and who, Wersal said, openly state that they will refuse to follow the law.
Subjecting incumbent judges to retention elections without an opponent to point out the incumbents flaws is not enough accountability for Wersal.
He also questioned why, if the voters are smart and well-informed enough to decide whether a judicial incumbent should be retained, the voters can’t be trusted to decide who would do a better job.
Under the proposed appointment/retention system, if a judge loses a retention vote, the vacancy would be filled by a new gubernatorial appointment from the recommendation of an expert panel.
That system has been in place in Iowa since 1962 and, until this year, no Supreme Court justice had ever been removed by a vote of non-retention until this year, when all of the justices on the ballot were removed, apparently because they had voted to legalize same-sex marriage and because they were targeted by an estimated $1 million budget of mostly out-of-state money contributed by opponents of same-sex marriage.
Of course, a story like that raises a different set of questions about electoral accountability for judges who, in theory, are supposed to interpret the law as they see it even if it leads to an unpopular result.
A third member of yesterday’s Humphrey panel saw the Iowa incident as a good outcome that showed the benefits of the retention system. Gary Borgendale, local ministry director of KKMS (AM 980), a Christian radio station, was apparently on the panel to offer a Christian perspective. He spoke approvingly of the Iowa vote as evidence that the system works.
The fourth panelist, Sarah Walker of 180 Degress, Inc., which helps ex-offenders in their transition back to life outside prison, also endorsed the retention election concept. She said the merit selection/gubernatorial approach would increase diversity among judges, and that too much direct democracy in the judicial selection/retention process would discourage judges from making controversial decisions.
Speaking of controversy, I mentioned above the unusual atmosphere of the forum compared to the usual stolid, scholarly Humphrey events. The audience was full of lawyers and seemed to contain many supporters of the appointment/retention proposal, some of whom could not help grumbling audibly when Wersal made his pitch for more democracy and more partisanship in judicial elections, not to mention his colorful denunciations of black-robed jerks he has known.
But Wersal also had some impassioned supporters in the crowd, one of whom was so upset by something Magnuson said that he tried to interrupt (rather than abide by the usual written questions rule of these affairs) and another who, when he heard something he disliked from the retention backers, would simply shout What!?
I’ll give Magnuson the last word to make sure he gets a chance to answer Wersal’s question about why the public can be trusted to remove the bad judges but not to choose their replacements. The Iowa case demonstrates that partisan groups can still oust a judge in a retention election, Magnuson said. But you don’t get an opposing candidate with a stated view put into that chair.
If you want more details on the Citizens Commission for the Preservation of an Impartial Judiciary (also known as the Quie Commission for its chair, former Gov. Al Quie, and the plan they have they have proposed, their full report is here (its a pdf).