Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Judicial Reform: On Behalf of Seven Generations

Boozhoo Niijii; Gdinimikoon. Hello, Friend; I greet you in a good way.

The Ojibwe/Anishinaabe people, like many American Indian communities, have a cultural ideal of contemplating how the lives of the next seven generations of children will be affected by the making of long-term decisions. According to Ojibwe/Anishinaabe tradition, by contemplating how what is done in one lifetime will be reflected seven generations into the future, long-term decisions will not be selfish or rash. Contrast this ideal with mainstream, business, and politically expedient decision-making paradigms which seldom look beyond what could happen in the next five or ten years.

Minnesota is at a crossroads in history where its people could have the rare opportunity to profoundly affect the future of their society into the next century. Presently pending before the legislature are bills1 that seek to place on the ballot in November 2010 a proposed amendment which would reform our state constitution. Under these reforms, instead of through the continued use of contested elections, future state court judges would be selected initially through a merit-selection process; publically evaluated thereafter by a nonpartisan citizens performance-review commission; and then, at the end of each term, presented to all Minnesotans who would vote whether to retain each judge for another term. The proposed reforms are a measured and reasoned answer to the politicized and highly negative, special-interest-money-driven judicial campaigns that are moving into other states which, like Minnesota, presently hold contested elections for state court. The MSBA strongly supports these reform efforts.

The specific rationale for the MSBA’s support of reform can be found in the White Paper provided as a supplement with this month’s issue of Bench & Bar. The White Paper can also be found at The broader reason for MSBA support is not about creating a competent and impartial state court—we presently have that: one recent national survey ranked Minnesota’s state court system second for competence and fifth for impartiality. Rather, the broader reasons for MSBA support of reform are equally about protecting the continued impartiality of our state court while also more directly maintaining the public’s trust and confidence therein.

United States Supreme Court Justice Felix Frankfurter (1882 – 1965) wrote: “[t]he court’s authority—possessed of neither the purse nor the sword—ultimately rests on substantial public confidence in its moral sanction.” A majority of Minnesotans surveyed in 20082 would agree with Justice Frankfurter:

  • 78% believed judicial candidates making pledges to political parties or on other special-interest issues threatens the fairness of the courts;
  • 75% believed judicial fundraising is a threat to the fairness of the judiciary;
  • 74% believed campaign advertising impedes the impartiality of judges; and
  • 74% supported merit selection with retention elections for judges (this support was bipartisan with 82% of Democrats and 76% of Republicans responding in favor of merit selection with retention elections).

While no system is perfect, when this issue is viewed through a prism of public interest rather than one of private interest, the arguments in favor of maintaining the status quo of contested judicial elections do not adequately serve the important dual goals of protecting the impartiality of our state court while also maintaining the public’s long-term trust and confidence in that court. When considering these proposed judicial reforms, we should remain cognizant of the timeless admonition of the patriot, Samuel Adams (1722 – 1803):

[l]et us contemplate our forefathers, and posterity; and resolve to maintain the rights bequeath’d to us from the former, for the sake of the latter … . Let us remember that “if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom” … millions yet unborn may be the miserable sharers of the event.

An impartial judicial system that enjoys the public’s trust and confidence is essential to the stability of our republic; attacks thereon by those who would seek to politicize and inject special-interest politics into the selection of state court judges3 should not be tamely suffered by any of us.

Next November, all Minnesotans should have a voice and a vote in determining whether they want their future state court judges selected through contested elections influenced by ever greater special-interest, money-driven, highly negative campaign tactics or through merit selection followed by retention elections that are determined by voters who are informed by the results of public performance evaluations. It is my hope that MSBA members will contact their personal representatives at the state Capitol, and tell them their constituent wants the legislature this session to pass out the pending bills providing for a constitutional amendment on judicial selection/election reform. The almost 17,000 members of the MSBA should and can be a strong voice on this issue, not just on behalf of all present Minnesotans, but on behalf of the next seven generations of our children.

Miigwech bizindawiyeg. Thank you for listening to me.

1 Senate File 70 (Rest) and House File 224 (Simon).
2 Survey conducted by Decision Resources, Ltd., of Minneapolis, from 1/2/08 to 1/15/08. The results are projectable to all Minnesota adult residents within (+) or (-) 3.5 percent in 95 out of 100 cases.
3 See, e.g., Caperton v. A. T. Massey Coal Co., 08-22, __ U.S. __ (June 8, 2009).

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