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February 2, 2010
We Need a Change for Judicial Selection
This year, the Citizens League, as part of the Coalition for Impartial Justice, is supporting a constitutional amendment that would change the system for selecting judges in Minnesota. At Monday's Mind Opener, we heard from Bar Association president Leo Brisbois and Supreme Court Justice Barry Anderson about why this reform is needed and what it would do. Here's a summary:
The current system
The state constitution provides for election of judges, but about 90% of judges are initially appointed by the Governor before facing reelection. This is the result of a quiet consensus among judges and lawyers that the appointment process is generally better at choosing qualified judges, because voters usually have so little information about judicial candidates. (When was the last time you felt like informed about the judicial candidates on your ballot?) Retiring judges usually leave in between terms, so that their replacements are initially named by appointment before coming up for either a contested -- or more usually unopposed -- election.
Nationally, Minnesota's judiciary ranks second in competence and fifth in impartiality and has historically enjoyed a good reputation for fairness and independence.
So if it's working well, why the push for change?
More and more states are seeing expensive, negative campaigns in judicial races, places like Texas, Ohio, California, and Wisconsin. Eventually, this trend will reach Minnesota, and we have a lot to lose if even the perception of fairness is lost because of millions in campaign funding from special interests.
In 2002, the US Supreme Court struck down long-held Minnesota requirements that were designed to prevent judges from taking positions on issues they may have to rule on. In Republican Party v. White, a case brought from Minnesota, the US Supreme Court held that states may not prohibit judicial candidates from discussing their political positions. Judicial candidates are now free to campaign on controversial political issues, seek party endorsements, and personally solicit campaign contributions.
What's at stake?
As Justice Anderson described, two things are at stake here:
First is the impartiality of the courts: Judges who had made campaign promises, especially in exchange for financial support, may be less apt to decide cases based on the merits of that individual case and more likely to be influenced by politics or by their supporters.
More importantly, though, is the perception of the court's impartiality. Whether or not expensive campaigns actually influence judges' decisions, said Justice Anderson, an average person looks at this and says, "You've gotta wonder." As money becomes a factor in judicial selection, studies have shown that the public's perception of influence increases, and respect for the courts decreases. Our society is based on a more or less voluntary obedience for the rule of law and the decisions of courts. This is a very dangerous path.
What would that change look like?
This, in a nutshell, is the proposal from the commission led by former Governor Al Quie and supported by the Citizens League and a host of other organizations from all across the political spectrum:
- Judicial vacancies would be filled by appointment by the Governor after recommendations from a judicial selection commission.
- Judges serve set terms then are up for retention elections. In these elections, the judges run on a simple yes or no vote with no opponent. If they are voted out of office, the open seat returns to the Governor for another appointment.
- To help voters be more informed about the candidates, all judges would face performance evaluations. They would be evaluated by a committee of citizens appointed by the Governor, the Legislature, and the Supreme Court, which would publicly report on judges' performance prior to retention elections.
To make this change requires a constitutional amendment. Legislation has been introduced this year (SF 70 and HF 224) to put this question to voters in the fall.
One additional note: Even though Minnesota's, judicial system currently gets high marks, it's important to note that trust in the court system is not equal across Minnesota's racial and ethnic community. As we began to discuss at on Monday, an improved selection process, along with more transparent information about judges, could make a retention election system more meaningful for all communities. Would someone care to comment on that?
Posted by Annie Levenson-Falk at February 2, 2010 12:43 PM