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Mark Dayton’s most lasting legacy

By the time he steps down in January of 2019, Dayton will have appointed nearly half of all judges serving on the bench across state of Minnesota — more than any governor before him. 

Judge Natalie Hudson speaking during the announcement of her appointment to the Minnesota Supreme Court by Gov. Mark Dayton in 2015.
MinnPost photo by Briana Bierschbach

It’s a governor’s job to appoint judges in the state of Minnesota, and when Mark Dayton took over, he noticed a pattern: most of the finalists were white guys.

It wasn’t exactly surprising to Dayton. The candidates were all qualified to be judges, and they mirrored the judiciary overall, which was mostly filled with men who had been lawyers and law clerks who had climbed up to the bench.

But Dayton also wondered: Why weren’t more qualified women and people of color making it to the final round of interviews? “When you come into a courtroom, you want to see, is there anybody who looks like me?” the governor said.

So Dayton, a former public school teacher and lifelong politician with no legal background, set himself a goal for his time in the governor’s office: tap into the his network of attorneys and judges in order to diversify the judiciary. 

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It worked. Today, there are more women and people of color serving on the bench than at any other point in the state’s history. But even Dayton didn’t know just how much the courts would change under his watch. A demographic bubble led to a huge number of judges retiring during Dayton’s two terms, and by the time he steps down in January of 2019, the Democratic governor will have appointed more than half of all judges serving on the bench across Minnesota — more than any governor before him. And if state Supreme Court Justice David Stras is approved to fill the vacancy on the U.S. 8th Circuit Court of Appeals — he’s been nominated to by President Donald Trump —Dayton will end up appointing five of the seven judges sitting on the Minnesota Supreme Court.

It’s a big impact for a single person to have on another branch of government, one Dayton has both supported and also butted heads with, most recently in the court case against his veto of the Legislature’s funding. “It’s going to have a lasting effect,” he said. “You are putting someone in place for a long time — long after I’ve departed. I’m certainly struck by the importance of it.”

Minnesota courts, by the numbers

Minnesota’s judicial branch is led by the state Supreme Court, which has seven justices, including a chief justice, all of whom are appointed by the governor. There’s also a chief judge on the Court of Appeals, appointed by the governor for a three-year term, alongside 18 other judges on the appeals court.

But the bulk of judgeships in the state are in district courts, spread out across the state’s 87 counties and 10 judicial districts. In all, there are 293 district court judges who handle much of the day-to-day criminal, civil and family cases across the state of Minnesota. In 2016, they handled more than 1 million cases.

Since taking office in 2011, Dayton has appointed 132 of those judges. With more hitting the mandatory judge retirement age of 70 — and others leaving early of their own volition — he could appoint as many as 10 more judges before the end of summer and 40 total before he leaves office.

To fill those 132 judgeships, Dayton’s office received 2,208 applications — about 84 percent of which came from people self-reporting that they were white. Male applicants also dominated the pool, with about 60 percent of the applications comiong from men. 

And yet, during his time in office, Dayton has appointed 70 female judges and 62 male judges. And though the overwhelming majority of those judges are white, the percentage of his appointments who are people of color is higher than that of the state as a whole. It’s a group that now includes eight Hispanic judges (up from two when he entered office); 10 black judges; five Asian-American judges; and two American Indian justices and one Middle Eastern judge — increasing the overall racial diversity on the bench by 89 percent since 2011, according to the governor’s office.

Included in those numbers are some of the state’s most prominent jurists, people like Peter Reyes, the first Hispanic appellate court judge in Minnesota’s history; and Wilhelmina Wright, the first black woman to serve on the Minnesota Supreme Court. Dayton’s most recent appointment to the Minnesota Supreme Court, Anne McKeig, marked the first time an American Indian woman has taken the bench on the state’s highest court. It also meant that the majority of the justices on the Supreme Court are now women, the first time that’s happened since 1991.

To diversify the candidates applying for judgeships, Dayton has hosted several receptions at the governor’s residence for various bar associations, asking individual lawyers to reach into their networks and encourage more people from diverse backgrounds to apply. The administration has also published articles in various legal publications — with subtle headlines like, “So you want to be a judge” — to get different people thinking about moving from being a lawyer to a being a judge.

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“[There’s been] a concerted effort to broaden the reach of people coming into the system so we are ending up with courts at all levels that look more like the population in general,” said Peter Knapp, a professor at the Mitchell Hamline School of Law. “It’s more racially diverse and gender balanced. It’s an important change and one the state’s been working toward for some time now.” 

Not Wisconsin

The state’s constitution gives the governor the sole authority to appoint judges, who then must then be re-elected by the public for subsequent terms. That’s given Dayton a rare chance to diversify the judicial branch, but the number of Dayton appointments doesn’t mean the bench is getting more partisan, experts say. 

That’s largely due to the state’s system setup for appointing judges. In 1990, a bill set up Minnesota’s Judicial Selection Commission, a 49-member body of appointed volunteers who vet applications for vacancies in judicial districts across the state.

The idea behind the commission was partially to help the governor with the workload of reviewing judge candidates. But it was also to create a board of experts — with representation from across the state and with some citizen input — to help find the best judges. The commission usually narrows applications for a judgeship down to three candidates that are presented to the governor for interviews. 

“It has made the process more transparent, it has brought lawyers into the process, it has honored geography, and it addresses the unusual circumstance of the governor, the head of the executive branch, appointing people to lead another branch of government,” said Lee Sheehy, who was appointed by Dayton to run the commission. 

Eric Magnuson, a former Minnesota Supreme Court Chief Justice and previous chair of the Judicial Selection Commission under Gov. Tim Pawlenty, said Dayton has carried on the tradition of basing his selection of judges on merit, not politics. Magnuson said that trust in the process has helped keep partisanship mostly out of judicial elections, at least for now. 

That’s unlike the national court debate — or even the situation in neighboring states like Wisconsin — where appointments and elections have become embroiled in politics. “We wanted to find the best candidate to fill the seats and make sure the governor would have nothing but good choices to make,” he said. “So far, we’ve been successful in keeping partisan politics out of the selection process, and that helps us avoid partisan politics in the election process.” 

New perspectives

When Dayton sits down with a judge candidate, he asks them all the same opening question: Why do you want to be a judge?

The answer usually falls in two basic categories, he said. “One is, ‘It’s part of my career ambition,’ it’s about me. The other is, ‘I want to serve,’” Dayton said. “Right away I’m looking for somebody who has demonstrated they want to do this for other people and not just themselves.”

Dayton said he also wants someone who is “compassionate” and can see the world from many different perspectives — perspectives that are often new the bench. According to an analysis by the courts, as of Dec. 31, 2016, there were more than 100 judges serving in the state who had between zero and four years of experience.

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Chief Judge Ivy Bernhardson, who serves in Hennepin County, worked as a corporate lawyer for two decades before she was appointed to the bench in 2007. She thinks a lot of new faces and different backgrounds is good for the courts.

“There’s value in turnover because you do get fresh perspectives,” she said. “It comforts people to see people who look like them in the courtroom; I think it’s important. But I also don’t care are what color or sex you are, our job is to provide equal access to justice and be the balanced voice, courteous to everyone.”