David Schultz: Let’s appoint, rather than elect, Minnesota judges

This week, Minnesota voters were again faced with a perplexing choice – how to vote for judges when they know so little about them. What happen is that many voters don’t cast ballots for judges, or even if the do wish to vote, for almost all the elections the candidates will be unopposed. This seems to question whether voters actually have a meaningful choice. One solution perhaps is to have candidates run real campaigns, seek party endorsements, raise money, and discuss the issues. In effect, bring real politics and excitement to judicial elections, and the voters will come.

But if anything, the recent U.S. Senate confirmation hearings of Brett Kavanaugh point to dangers of what happens when judges come to be viewed as no more than politicians with robes. One of the chief threats to the politicization of judges is elections, and the lessons from across the country are that judicial elections are dangerous and ought to be eliminated, including in Minnesota.

Since it began a state in 1848, Minnesota’s Constitution provided for judicial elections, with appointment by the governor in case of a vacancy. We have been fortunate to have one of the most respected and competent state court systems in country, in part because of laws making judicial elections non-partisan and rules limiting the ability of candidates for judge to affiliate with parties, solicit funds, and speak on positions that will or likely come before them. As much as possible Minnesota has sought to preserve the independence and nonpartisan character of the judiciary.

However, beginning in 2002 in Minnesota Republican Party v. White, the U.S. Supreme Court and then Eighth Circuit Court of Appeals declared that limits on solicitation of funds, affiliation with parties, and speaking on issues likely to come before the court violated the First Amendment. If, according to the courts, we are going to have judicial elections, then candidates need to be free to act similar to other candidates for office in campaigning and discussing issues. While in theory this sounds reasonable, the results where judicial elections are partisan and allow this have been a disaster.

Across the country judicial elections in places such as Texas and Illinois are partisan and costly, with television ads as nasty as the ones Minnesota saw this year on television.  In 2010 in Iowa after its Supreme Court struck down the state ban on same-sex marriage, voters ousted three of the justices in an election the following year. In the 2009 Caperton v. Massey decision, the U.S. Supreme Court overturned a West Virginia Supreme Court case where a justice there supported by a coal company received more than $3 million in campaign support to ensure his election. He cast the deciding vote to void a lower court decision that had assessed $50 million in damages against the coal company.  Across the country, there are other stories of how judicial elections have gone wrong, turning these elections into costly partisan battles where justice is for sale.

As I point out in a forthcoming Mitchell Hamline Law Review article as well as elsewhere in my research, judicial elections are dangerous to both justice and diversity. There is ample evidence that elected judges are less supportive of individual rights, especial for those accused of crimes, than appointed judges. There is also evidence that appointed judiciaries are more diverse than elected ones.

Despite the court cases noted above and trends across the country, Minnesota continues, for now, to escape the problems plaguing elected judiciaries across the country, for two reasons. First, there is strong bipartisan consensus among political leaders and the legal community that the courts should not become more politicized than they are. Second, more than 90 percent of those who become  judges in Minnesota do so initially by gubernatorial appointment, effectively making our courts more appointed than elected.  Yet many of us fear that it is a matter of time before big time politics come to Minnesota judicial elections.

Judges must be held accountable for their decisions, but currently the lack of information about judicial candidates leads to voter indifference or failure to vote for judges.  Yet the  wrong remedy is to politicize the judiciary more by increasing its electoral nature. Instead, we need to think about really making the state courts an appointed system. Yes, the confirmation process for Brett Kavanaugh was a mess, but there are other ways to select judges besides elections or the way the U.S. Senate does it. One can devise a system that promotes accountability, impartiality, and competence, but tilting more in the direction of an elected judiciary does nothing more than turn judges into politicians with robes.

David Schultz is a professor of political science at Hamline University in St. Paul.

 


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