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Supreme Court choice Lillehaug just the latest in long line of ‘political’ appointments

Courtesy of the Governor's Office
David Lillehaug, named Tuesday to the seven-member Minnesota Supreme Court, said he would be guided by “principles and precedent.”

No one was quicker to judge the motives of politicians for making “political” appointments to the Minnesota Supreme Court than gubernatorial candidate Mark Dayton.

In 2010, when Gov. Tim Pawlenty named David Stras, an obscure newcomer to Minnesota, to the state’s highest court, Dayton blasted the choice.

Dayton noted that Stras had been a clerk to U.S. Supreme Court Justice Clarence Thomas and that Pawlenty was only interested in appealing to the right wing by naming Stras to the court.

“Once again, Gov. Pawlenty has sacrificed the best interests of Minnesota for his presidential ambitions,” Dayton said.

On Tuesday, Gov. Dayton made what could be seen as a very political choice in naming David Lillehaug to the seven-member court.

Lillehaug, who has ties to Dayton, the DFL and progressive causes, will replace Justice Paul Anderson, who will step down from the court in May at age 70, the mandatory retirement age for judges in the state.

‘Brilliant mind,’ close ties

“One of the most brillant minds I’ve ever encountered” is how Dayton described Lillehaug, who has been a partner at Fredrikson & Byron since 2002.

Dayton’s had the opportunity to watch Lillehaug in action. He worked on the governor’s behalf during the recount process following the governor’s razor-thin margin over Republican Tom Emmer in 2010. Lillehaug previously had worked on behalf of Sen. Al Franken during his recount victory over Norm Coleman.

But there is nothing unique about Dayton’s mixing of politics and selection to the state’s highest court.

In fact, the man who Lillehaug will replace on the court said that the mix is not a bad thing.  Anderson said Tuesday that perhaps the U.S. Supreme Court would be healthier if more of the justices came from political backgrounds.

As it stands, Anderson believes, the U.S. Supreme Court justices come from backgrounds “too isolated from real-life issues.’’

paul anderson speaking photo
MinnPost photo by Doug Grow
Justice Paul Anderson said Tuesday that perhaps the U.S. Supreme Court would be healthier if more of the justices came from political backgrounds.

Anderson offers no apologies for how political involvement led to his own elevation to the state Supreme Court.

In 1990, Jon Grunseth, the Republican Party’s gubernatorial candidate,  was forced off the ticket by allegations of improper relationships with teenage girls.  Grunseth was out just nine days before the election.

Incumbent Gov. Rudy Perpich fought hard to keep the GOP from placing Arne Carlson’s name on the ballot. Carlson was being advised by an unknown attorney, Paul Anderson.

Only three days before the election, the state’s Supreme Court ruled that Carlson’s name should be on the ballot and Carlson went on to win a 3-point victory over Perpich. (It should be noted that Perpich never forgave Sandy Keith for writing the decision that allowed Carlson’s name on the ballot. Perpich and Keith had been longtime friends and Perpich had named Keith the chief justice.)

Carlson clearly was as impressed — and appreciative — of Anderson’s work. In 1994, he appointed Anderson to the Supreme Court.

Political connections easy to see

The connections between politics and the state’s top court are not hard to see.

Pawlenty named Christopher Dietzen to the court, after Dietzen had served as his attorney during Pawlenty’s first campaign for governor. Pawlenty elevated Justice Lorie Gildea to chief justice after she wrote a minority opinion regarding his use of “unallotment” powers in 2010.

More than ever, that unallotment case is part of the fabric of the Supreme Court. Gildea wrote the minority opinion, supporting the governor. Stras wrote a brief in support of Pawlenty’s opinion and came out of nowhere to became a Supreme Court justice.

Now, Lillehaug rounds out the picture. He was the attorney representing the Minnesota House in that case.

Anderson offered advice to Lillehaug Tuesday on how to handle charges that this was an appointment based on political favoritism.

“Don’t take shots for being involved politically,” Anderson said to Lillehaug. “I applaud [involvement] loudly.”

In his career, the 58-year-old Lillehaug has been in just about every sort of case imaginable.

Controversial cases

As  U.S. attorney in Minnesota during the Clinton presidency, Lillehaug upset his progressive friends by prosecuting a case against Malcom X’s daughter, Qubilah Shabazz.

Shabazz, who in 1965 had seen her father murdered by three Nation of Islam gunmen, was charged in 1995 by Lillehaug’s office with participating in a plot to murder Nation of Islam leader Louis Farrakhan. The case, which made national headlines, ended with Shabazz accepting a plea agreement in which she did not admit guilt but accepted responsibility for her actions. As part of the deal, she was to undergo psychological counseling.

In another high-profile 1990s case, Lillehaug’s office charged renowned University of Minnesota heart transplant physician John Najarian with an array of offenses ranging from tax fraud to medical fraud. Najarian, a hero to most in Minnesota, was acquitted of all charges.

These headline cases may not have helped Lillehaug in his personal political ambitions — he attempted to win DFL endorsement for the U.S. Senate in 2000 — but they didn’t frighten him away from controversy.

It was, for example, Lillehaug who was the lead attorney for churches that were attempting to win the right to ban weapons from their properties in 2003. The churches were victorious in the courts.

But Lillehaug downplayed the high-profile cases Tuesday. He wouldn’t speculate on how often he has appeared as an attorney before the Supreme Court. Most of the time, he said, he has represented business clients.

He will bring the same open-mindedness to his new job that he did to his job as a U.S. attorney, he said. He vowed to be guided by “principles and precedent.”

He did admit that his life will be different now.

“I will leave the life of advocacy,” he said.

After the session with the media, Anderson talked again of how all of Lillehaug’s experiences will help him in his new job.

“You take hard knocks, you experience things, you learn,” he said. “Everything that has happened in your life help makes you a better judge.”

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Comments (3)

  1. Submitted by David Frenkel on 03/27/2013 - 11:09 am.


    There is a saying on Capital Hill in Washington, DC that every decision is a political decision. That is why we call it politics.

  2. Submitted by Jeremy Powers on 03/27/2013 - 12:04 pm.

    Lillehaug is infinitely fair minded

    None of us really know how much politics may have played a part in this, but anyone who has met or talked to David Lillehaug for any time knows he is very fair minded. Anyone being appointed to the court will bring with them their own beliefs and values. But I think people should expect that they are fair. Gov. Dayton absolutely chose someone who will represent the fairness we want in Minnesota.

  3. Submitted by Jim Spensley on 03/28/2013 - 07:34 pm.

    David Lillehaug

    The reason Justices are appointed to long terms is to bridge over partisan Governors. The Governors in turn want to center the Court majority. In my opinion Justice Lillehaug will be great as a jurist and as a moderating force against Pawlenty’s appointees.

    Doug Grow has the ability to suggest the upcoming cases that might be decided based on partisan philosophies, and why a Justice might wander from facts and law for a politician or a political cause.

    If this wandering was likely, Doug could give a few examples. Otherwise, it isn’t news that Republicans fear Democratic appointments and vice-versa whether or not it applies specifically to either a case or an appointee.

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