• March 4, 2010

[UPDATE:  Thursday morning, 3/4/10, the House State and Local Government Operations Reform, Technology, and Elections Committee passed HF224, the MSBA’s high priority judicial selection reform bill, by a 14-4 margin.  The bill was presented by its chief author, lawyer-legislator Rep. Steve Simon (DFL-St. Louis Park).  Among those testifying in support of the bill were Minnesota Supreme Court Chief Justice Eric Magnuson and his predecessor, Kathleen Blatz.  The bill now moves to the House Civil Justice Committee.]

When we vote for legislators or those in the executive branches of state and federal government, we need to know where they stand on the important political and social issues of the day because these are the people who will pass our laws and shape our public policy.

Judges, on the other hand, are, of course, supposed to be neutral arbiters of individual disputes subject to court rules, evidentiary constraints, and the appellate process.  We might wish to know how they would decide every case (or “most cases,” or “the important cases”) but, for any judicial candidate worth our vote, that would be impossible for him or her to tell us in advance — like asking a doctor for a diagnosis without any tests or examination.

In short, subjecting judicial candidates to the same electoral process that has been historically reserved for legislators and our executive branch leaders is simply a disastrous proposition.  Read the linked White Paper on a Proposed Minnesota Constitutional Amendment Concerning Judicial Selection, Retention, and Evaluation by the Coalition for Impartial Justice and authored by Bruce Jones and Kyle Hawkins of Faegre & Benson, LLP.  It is a well-researched and compelling call to action against a serious threat to the impartiality, independence, and integrity of Minnesota’s judiciary.  More after the break…

While the electoral process (a “market” of sorts) works (more or less?) for legislators, governors, and presidents, it is profoundly flawed when it comes to judges.  Judicial candidates who win the most in “no-holds barred” judicial “markets” might be the worst judges.  (Consider the campaign tactics set out in the Coalition White Paper in states that have had big money judicial campaigns and popular elections.)   “Selling” judicial temperament, sound judgment, dispassionate reflection, and analytical acumen is pretty close to a straight-up oxymoron.

Moreover, judicial elections pose a particular risk of excessive influence of special interests due to concentrated benefits/diffuse costs.  For example, a candidate who is heavily biased toward personal injury plaintiffs or biased toward corporate interests would obviously be strongly favored (and financially supported) by the plaintiff’s bar or by corporate interests, respectively, but those with opposite interests (potential defendants, on the one hand, consumers, on the other) are far more diffuse, even non-ascertainable (“Future Tortfeasors of America for Justice Jones”?), and unable to serve as the necessary counter-balance for these other powerful interests.

The same imbalances exist in other elections, of course, but they are even more threatening when the official being voted on is supposed to embody neutrality.  We might disagree with politicians’ allegiances but we accept that, almost by definition, they have them.  We want our judges, on the other hand, as much as possible, to have none, to approach each case on its merits and each issue in every case with detached, non-partisan analysis.

The MSBA and Coalition for Impartial Justice White Paper concludes, “The time to act is now.”  Act how?  The Coalition urges the legislature to adopt House File 224 and Senate File 70, which would replace multi-candidate, contested judicial elections with simple judicial-retention elections.  Who will oppose this sensible approach to a serious threat to our judiciary’s integrity and independence?

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