From a perch in her darkened kitchen, a woman strikes a serious tone; her eyes are locked on the camera’s lens as she tells her television audience that Supreme Court candidate Jim Kitchens, who is running in November’s election, puts criminals ahead of their victims.
More than $476,000 has been spent by outside groups on television attack ads like this one in attempts to influence the makeup of Mississippi’s Supreme Court, according to the Brennan Center for Justice at New York University School of Law.
It’s not just Mississippi that’s seen more politicized judicial elections. Last week, President Barack Obama took what the Hill called an “unprecedented” step of endorsing a state supreme court candidate in a North Carolina race that’s been a magnet for outside spending.
Compared to these contests, Minnesota’s judicial elections look like real snoozers, attracting little attention from media, politicians and special interests.
Minnesota voters have not seen the tactics employed in Mississippi and North Carolina in the run-up to the November election, in which they’ll choose judges to fill seats on the state’s district courts, appellate courts, and one spot on the Supreme Court.
In Minnesota, major political party spending or special interest political action committee money hasn’t entered judicial elections. The average Supreme Court candidate raises significantly less money than do candidates in other states. Party endorsements in judicial races have happened rarely, and TV attack ads are unheard of.
But some worry it might not always be that way. Outside money groups have spent a record $14 million on TV ads to influence state supreme courts this election cycle alone. Each year, it seems, another state with a reputation for low-key, non-politicized judicial elections sees a dramatic upswing in spending, said Alicia Bannon, senior counsel in the Brennan Center’s democracy program.
Could Minnesota be next?
A good reputation
Experts say it’s all but impossible to keep politics — and money — out of the judicial selection process entirely.
But some systems work better than others. Minnesota’s judicial selection process has fostered a reputation for fair and impartial judges, even as courts in other states have become increasingly politicized, said Robin Wolpert, the president of the Minnesota State Bar Association.
Most judges at all levels of the Minnesota Court system are first placed on the bench by appointment of the governor. District court judges, who make up the vast majority of Minnesota judges, usually first pass the muster of a 49-member judicial selection commission, made up largely of attorneys.
In order to hang on to their seats, judges at all levels must be re-elected by voters in nonpartisan elections. When a judge leaves office at the end of a term — which happens rarely, in part because judges are required to retire at age 70 — there is an open election with no gubernatorial appointment.
Oftentimes, Minnesota judges run unopposed. But sometimes they don’t, and other times there are open seats. The quality of candidates not appointed by Minnesota governors has tended to vary more, Wolpert said. Under Minnesota statute, the only requirements for becoming a judge are to be over age 21, be eligible to vote and be a licensed attorney.
The selection processes in Mississippi and North Carolina are similar to this, minus the judicial selection commission — so why isn’t Minnesota seeing nasty attack ads?
Expectation of impartiality
For the most part, judges and judicial candidates in Minnesota have hewn to a standard of impartiality that has all but disappeared in some parts of the country, Wolpert said.
She remembered a discussion about judicial races she had with a former mayor of Austin, Texas, at a conference. In Texas, judges at each level of the judicial branch are elected in partisan elections, a system some people prefer because they believe the power to select judges should rest with the people.
“The presumption for him was there was going to be big money and partisan debates in elections,” Wolpert said. “My presumption that I grew up with (in Minnesota) was that that was antithetical to what a judge was.”
In fact, for a long time that presumption was enshrined in Minnesota law. But in 2002, the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit ruled in Republican Party of Minnesota v. White that restrictions keeping judges from speaking on contested political and legal issues were unconstitutional. Under the White ruling, judges could not be prohibited from identifying themselves as members of a political party, going to political events or accepting and using party endorsements.
You won’t want to miss this post-election discussion with Sen. Al Franken and political scientist Norm Ornstein. Get tickets today!
After White, many in Minnesota’s legal community feared the loosened restrictions on judges’ political activity threatened to turn the state’s nonpartisan elections into partisan ones.
“The White decisions have fundamentally altered the rules of conduct for judicial campaigns in Minnesota,” wrote members of the Citizens Commission for the Preservation of an Impartial Judiciary, chaired by former Gov. Al Quie, in a 2007 report.
“Post-White elections may now be conducted and funded in a manner that enhances the ability of political parties, special interest groups, popular majorities, and other moneyed interests to exert control over the judicial decision-making process and obtain rulings that reflect their policy preferences.”
While courts have ruled that judges’ participation in these activities is protected by the First Amendment — and not everyone agrees that it’s undesirable — many Minnesota judicial candidates and judges still regard announcing their views or participating in politics as inappropriate for a judge, Wolpert said.
“I’m heartened by the fact that (judges) who have the First Amendment right to do whatever they want … generally restrict themselves and hold back,” Wolpert said.
In Minnesota, would-be judges might attend community fairs, put up yard signs, place radio ads and knock on doors to drum up votes, but they tend to focus on their experience and ability to fairly evaluate cases when they campaign, and not on major political issues.
Wolpert stressed that she’s speaking for herself, and not the Bar Association, but that personally she believes that’s a good thing.
“When you have people going out and campaigning on issues, people donate because they feel like they’re buying a vote,” she said.
Relatively little money, so far
Three in four Americans and half of state judges believe money in judicial campaigns affects decisions made in the courtroom, according to a Brennan Center report.
If that’s the case, Minnesota looks pretty good compared to other states — there really isn’t a lot of money in races for judicial seats here.
Between 2000 and 2009, the average candidate running for the Minnesota Supreme Court raised about $47,000, according to an analysis by the Brennan Center.
In November’s contest for the Minnesota Supreme Court — the only statewide race on the ballot this year, incumbent Natalie Hudson’s campaign committee raised about $60,900 between the first of the year and Oct. 24, according to campaign finance reports. Hudson’s spent nearly $39,000 on radio and web advertising. Challenger Michelle MacDonald’s committee has raised $210. Her campaign has spent $870 on T-shirts and $390 on print advertising.
Relatively speaking, this is a cheap race. The average supreme court candidate in Texas between 2000 and 2009 raised nearly $600,000, not including money spent by outside groups in races there.
At the district court level in Minnesota, the campaign of Paul Scoggin, an incumbent Hennepin County district court judge, has raised about $11,200 as of a few weeks before the general election. The campaign for his challenger, Chris Ritts, had raised about $13,400. That’s several times less than three candidates vying for a district court seat in Michigan raised (more than $70,000 each) before a primary election in 2008, according to the Michigan Campaign Finance Network.
There can be a lot of problems — perceived or real — with money in judicial campaigns, said Marie Failinger, a professor at Mitchell Hamline School of Law.
Judges may consciously or unconsciously favor a lawyer or someone involved in a lawsuit who gave them money. Of course, they may also rule against someone — consciously or unconsciously — who has not given them money.
In 2009, the U.S. Supreme Court ruled in Caperton v. A.T. Massey Coal Co. that a judge whose campaign had been given $3 million by the CEO of a company that had a case before the court (the judge sided with the company) had violated due process by not recusing himself from the case.
The court cited a risk of “actual bias” that exists when a judge has “direct, personal, substantial, pecuniary interest.”
“Judges are supposed to decide cases based on their understanding of the law and the facts in front of them, and not just out of concern of where they’re going to raise money for the next election or the topic of the next attack ad,” Bannon said.
Bannon said states have lagged behind in defining the line between an a campaign contribution that doesn’t require a recusal and a contribution that does.
Since many, if not most, contributors to judicial campaigns work at law firms (some law firms have political committees that donate to judicial campaigns, too), that could potentially have cases before a given judge, there are other issues to consider, too, Failinger said: Lawyers may feel compelled to donate because they feel a judge is more likely to rule against them if they don’t. They may also not advocate for their clients as effectively if they feel having contributed to the judge’s campaign will give them an advantage.
In Minnesota, judicial candidates are required by statute to take measures to make sure they don’t know who their campaign’s donors are.
In theory, that system’s only as good as a judge’s ethics, because such information is readily available and public, but Wolpert said that on every campaign she’s worked on, judges have taken steps to remove themselves from the room when discussions about donors come up.
All it takes
Just because Minnesota hasn’t seen a lot of politicization or money in judicial elections yet doesn’t mean it won’t happen in the future.
“Even states that haven’t seen these patterns yet need to be worried and need to be taking steps now to strengthen their systems and insulate the courts from these pressures,” the Brennan Center’s Bannon said.
The Brennan Center has been considering ways state judicial systems can insulate judges from politics. Some possible reforms include single term limits, appointment for life or until a specific retirement age, a system of public review of judges’ records that gives voters more information, and public financing of judicial elections.
For her part, Wolpert said, there’s always a fear that Minnesota could be the next state to see big money and politics in judicial races, but as each election cycle comes and goes with relatively quiet races, she’s hopeful.
Still, “All it takes is really one or two elections. All it takes is a combination of endorsements (and) big partisan money entering the state where it could be the thing that pushes us over and changes how we run elections,” she said.