The Whole System's Out of Order
In Minnesota, we elect most judges - including State Supreme Court justices.
As part of the judicial elections, Minnesota has maintained the willfully-naive fiction that judicial races are non-partisan; that judges are not supposed to cite any political stances in running for their benches. Thus, Minnesotans are officially to be unaware of, for example, SCOM justice (and former Viking defensive lineman) Alan Page's deep DFL connections and thoroughly left-of-center outlook, or the sympathies of many elected judges, all of which are well-known to the lawyers who practice before them - but which they are enjoined from telling us at election time.
Or were, until now.
http://www.startribune.com/stories/191/5547855.html
Katherine Kersten covers the Eighth Circuit opinion, which changed the rules:
Most Minnesotans pay scant attention to our state's judicial elections. Chances are, we see the wholly unfamiliar names of candidates for judgeships on the ballot, shrug our shoulders -- befuddled -- and skip them.
Or, in my case, write in family members and pets; if there's doubt about votes being counted, I can check with the registrar
But last week, the federal Eighth Circuit Court of Appeals radically altered our state's rules on judicial elections. Now those races are likely to take on the rough and tumble of political campaigns.
The court found that Minnesota rules that prevent judges from aligning with political parties or personally soliciting campaign funds are an unconstitutional bar on free speech. The decision follows a 2002 U.S. Supreme Court ruling that rejected similar Minnesota rules prohibiting judicial candidates from talking about "disputed issues." Both decisions will affect courts across the nation, since dozens of states elect judges in some way.Naturally, there are two sides to the debate:
Some Minnesotans are celebrating the Eighth Circuit decision, saying we'll finally learn something about the legal philosophies behind the names on the ballot. Others are concerned about outside influences on judicial independence. Both sides have plausible arguments.
But some arguments are more plausible than others.
While the people of Minnesota have been heretofore kept legally in the dark about judicial candidates' views, you can bet that when political insiders like Mike Hatch and David Lillehaug ponder where or when to file their various lawsuits, they know perfectly well which judges will toe which lines.
"People power" can indeed ensure judicial accountability. In 1986, California voters threw out Chief Justice Rose Bird, who had repeatedly refused to apply California's death penalty law.
But to vote intelligently, people must know how judges view the law, and elections should offer judicial incumbents and challengers as level a playing field as possible.
The Eighth Circuit labeled Minnesota's rules "remarkably pro-incumbent." Our system is so stacked in favor of incumbents that few sitting judges are ever challenged and fewer still are defeated.
Furthermore, while judges have been enjoined from discussing their views, the parties are not; in 2000, when Greg Wersal (a judicial candidate who has been a sort of walking test-case for this issue for years) ran for a seat, the DFL turned out to make sure the voters knew he was a pro-life conservative.
It's a good decision. By a group of appointed judges, no less.
Posted by Mitch at
August 8, 2005 12:35 PM
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Sadly, it was not just the DFL that treated Wersal poorly. You rightly point out that the Dems mentioned Wersal's party affiliation and positions on the issues, knowing that he could not confirm, deny, explain, or proudly expand on the information, lest he violate the rules. That disparity between Wersal foes and Wersal supporters shows a fundamental problem with the dear-departed speech code for judicial candidates.
Sadly, Republicans were part of the problem, too. The last Republican to serve as Hennepin County Attorney filed charges against Wersal for exercising what we now know is his First Amendment rights. Republican appointees on the bench have more loyalty to their colleagues and their own self-interest than they do to the Constitution.
It is unlikely that the U.S. Supreme Court will revisit this issue, three years after its landmark ruling that allows judicial candidates to express their views on disputed issues. But the fight is not over.
Following the 2002 case, the SCOM changed the ethics rules for judges, making them recuse themselves from ruling on any issue on which they expressed themselved during a campaign. From the filing period in June to the first Tuesday after the first Monday in November, any statement could result in your recusal. Of course, a sitting judge can say anything before or after the election and then rule on the same topic. And I guess a judge candidate who was vocal on an issue, but clammed up in June, could also avoid recusal. This is another example of an underinclusive rule like the one the Eighth Federal Circuit struck down.
Several months agao, the Minneapolis Club held a seminar that was meant to be a wrap up of the 2004 Court term. Justice Page was asked whether a sitting judge who wrote a dissent after the filing period, but before the election, would also have to recuise him/herself from later ruling on the same topic. Justice Page hemmed and hawwed and then said no.
Posted by: Peter Swanson at August 8, 2005 08:07 PMPolitical endorsements for judges can serve the same purpose as for other elected officials - it's a shorthand way for voters to identify people whose political opinions they support.
Suppose there are three candidates for judge: one candidate has earned the endorsement of the Democrat Farmer Labor Party; one has accepted the enthusiastic endorsement of the Ku Klux Klan; and one fought through a primary battle to win Republican endorsement, how much more do you need to know to cast your vote?
Contrast that with the current system, in which the un-named "Friends of Joe Doakes" contribute piles of money for judicial campaigns, but I'm supposed to believe Judge Doakes doesn't know which grey flannels in which chrome-and-glass offices wrote the check? I'm supposed to vote based on the billboard above SuperAmerica, just because it says he has "friends"?
This is a positive development, but only a first step. Next step, reform the judicial selection committee to de-emphasize trial work so we get a broader range of experience on the bench, not just public defenders and county attorneys.
Posted by: nathan bissonette at August 9, 2005 08:35 AM.
Don't think for a moment that the judges don't know who's contributing to their campaigns. The Campaign Finance Board requires names and addresses of every contributor who puts more than $50 into a candidate's campaign, and it's all a matter of public record. It's even posted on the Internet, though you have to do a bit of digging to get the names/addresses. This whole "non-partisan election" hoo-ha is just a bunch of smoke blown up the butt of the electorate.
Posted by: Kevin at August 9, 2005 09:24 AM