I’m proud to be a member of the MSBA because of its longstanding commitment to fostering a greater understanding of and appreciation for our independent judiciary.
From its founding in 1883, the MSBA recognized the critical importance of promoting awareness of the role and value of “the third branch.” Particularly today, with our internet-hyped, 24-hour news cycle, attention (for better or for worse) usually gravitates to the personalities and decisions of our political elected officials: legislators, governors, presidents, and many others. Because these people are often associated with a political party, each has something of a ready-made base of potential supporters—and opponents—based on the letter that appears after their name. Add in rumors and wild blog posts, and partisan leaders are rarely far from the media spotlight.
Nonpartisan But Unknown
In stark contrast, Minnesota’s nonpartisan judiciary features hundreds of judges across the state, the bulk of whom remain mysterious strangers to the public. (’Fess up: how many of us, as November approaches, are asked by our friends for our opinions on judicial candidates who will appear on the ballot, because our friends have no idea who they are?) To the general public and perhaps many lawyers as well, the courts are Byzantine structures that operate by their own, secret rules, which are often divorced from the real world and common sense. Courts are sometimes seen as unduly obsessed with abstract questions of law while failing to consider the day-to-day impact their rulings may have on people’s lives. Yet lawyers, even those who rarely venture into court, can usually appreciate the need for procedure and a particular analytical approach to solving problems; the “detachment” some criticize in judges is, to many lawyers, a healthy attribute of judges who consider a matter impartially without being swayed by factors that should not bear upon their decisions.
But when judges are relatively unknown to the general public, critics from both the right and left find it easy to blame court rulings that they don’t like or understand on a “biased, incompetent judge,” rather than recognize the possibility that the law pointed inexorably toward the outcome to which they object. When judges, and the court system generally, come under attack, our three-branch democratic system itself is under attack. And given the lack of party labels, judges are often hard-pressed to find that ready-made support network partisan elected officials can access with relative ease. In such cases, it is often the MSBA, and the legal profession generally, who represents the necessary defense: less for specific judges, but more broadly for the judicial system itself.
Some argue that a solution could be to free judges to assume party labels, so that they could campaign more freely, become better known, perhaps be less subject to attack, and be ably defended if they are attacked nonetheless. But if there’s one thing I’ve learned in this role, it’s that while both Republicans and Democrats agree that there is a time and place for party politics, they often further agree that the Judicial Branch is not the place. While it may feel promising to have your case in front of a judge who shares your party label, if it’s a toss-up and the judge may just as easily be of the other party, most participants in the process ultimately realize that it would be better to have their case decided by a judge who’s not a part of that system at all—who will decide the matter fairly and impartially.
Reforming Judicial Selection
In response to the efforts by activists who want to inject overt party politics into the judicial system, the Coalition for Impartial Justice (impartialcourts.org) has come together to advocate for the approval of a package of constitutional and statutory reforms. These would: formalize our current informal practice of filling vacancies by gubernatorial appointment, rather than by election; implement a merit-selection process for judges at all levels of the judiciary; create an evaluation process where a commission comprising both lawyers and nonlawyers will assess judges’ performance based on objective criteria, and publicize these evaluations to the public; and require judges to take part in retention elections rather than participate in “contested” races that, in reality, are rarely contested and involve voters who often have little to no information about the judges whose names appear on the ballot.
Several years ago, the MSBA joined the Coalition in support of this proposal. To be sure, though the MSBA’s position emerged from our usual lengthy and occasionally tortuous deliberative process and was not a random whim of our leadership, not all members agree with this position; it is challenging to get 16,000 members to agree on
anything. The Coalition launched its 2014 legislative effort in late February and the MSBA will contribute its voice to that campaign. I encourage all MSBA members to familiarize themselves with the Impartial Justice Act and to contact their representatives and senators to share their views.
At the same time, the MSBA’s Council will be working hard to examine and improve our current approach to funding programs that engage the public on the importance of an independent, impartial judiciary, the rule of law, and the roles of lawyers and judges. At a recent meeting, the Council made clear there were certain things the legal profession “couldn’t not do,” and I was heartened that these types of civic-education programs were among them. I hope to provide updates in the coming months.