During the month of January we learned of the confirmation of Justice Mimi Wright to become our newest federal judge, and within days we learned that Minnesota Court of Appeals Judge Margaret Chutich was named to replace her on the Supreme Court. District Judge Diane Bratvold was appointed to take Chutich’s spot on the court of appeals. Not long before this news, we saw the appointments of Justice Natalie Hudson, and Appeals Judges Lucinda Jesson and Tracy Smith. If, like me, you know most of these individuals professionally, then you can’t help seeing these appointments as validation of a merit-based judicial selection and appointment process.
In Minnesota, however, the Constitution contemplates judicial elections by popular vote. The governor’s appointment power is limited to temporarily filling vacancies that arise during the term of judicial office (and without any constitutional requirement of a merit selection process). Despite the apparent design of the Constitution for judicial elections, there has been an unspoken practice within the judiciary for departing judges to resign during office in order to allow for the initial selection of new judges by appointment, rather than by election. Although not universally followed, this practice has made the popular vote a rare source for initial selection of judges. This de facto appointment practice has stood the test of time for at least two reasons: 1) ethical constraints on judicial election conduct have kept the elections very low profile and this naturally makes it difficult for challengers to attract the attention needed to unseat an incumbent, and 2) the usual common sense and humility of Minnesota voters prevails because they sense they often lack information or understanding about candidate qualifications or what to look for when selecting a judge.
Beginning in 2002, the U.S. Supreme Court rocked the political equilibrium of this practice by holding the First Amendment forbids many restrictions on judicial electioneering. White v. Republican Party of Minnesota opened the door to the possibility of outright partisan involvement in judicial elections. Since this development, the members of the bench and bar have been worried about the “sky falling,” and we have been involved in an ongoing consideration of how we might best reform the process to continue to assure a non-partisan judiciary selected for impartiality rather than ideology. MSBA has adopted the position of favoring a change to a “retention election” system. This position has not been without controversy and even its supporters concede that it is not a perfect solution. Achieving such a change is no small task. An amendment to the Constitution is needed, and that means that the Legislature must put the question on the ballot. After many years of trying to convince the Legislature to place such a reform measure on the ballot, the idea has yet to gain sufficient traction. In the absence of a bad experience with judicial elections like those that have occurred in neighboring states, there seems to be no sense of urgency among legislators to adopt such a reform.
Given the lack of progress toward reform of our judicial election system, it may be time to see the handwriting on the wall and develop a different approach. If so, we should look for ways of helping to assure that our current system works well in maintaining our quality judiciary. Perhaps we should start to ask ourselves: what can and should the bar do to help assure that the election of judges remains non-partisan and resistant to the sway of special interest electioneering? In entertaining a new approach, we will need to consider several questions.
First, since there is no constituency that has a greater stake in assuring a fair and impartial judiciary than the bar, can we afford to ignore this issue simply because it is difficult?
Second, while disaster has not struck yet, should we ignore the consistent trend in Minnesota Supreme Court election results, which have shown well-qualified and respected incumbents gaining reelection by ever thinner margins? The last election illustrates this problem. In one case, a challenger who was under a cloud of ethical and legal allegations still managed to garner over 46 percent of the vote. In the other case, a person whose legal reputation was virtually unknown and residency in doubt, but who shared a famous name with a historical figure, received over 42 percent of the vote. The current mood of voters seems to be very anti-establishment, and it doesn’t seem that hard to imagine that a future challenger of dubious qualifications might one day win in such an environment. This is especially true if a challenger is funded by special interests or ideological groups.
Third, if the bar is to play an active role in assuring sound judicial elections, may it do so without appearing to engage in what amounts to a knee-jerk “incumbent protection” effort? To date, challengers in judicial elections have frequently been candidates with weak qualifications or questionable motivations. If we try to assure that elections are conducted responsibly, and the necessary resources are raised to achieve that, then what happens if an incumbent is ever challenged by a qualified and able member of the bar?
Fourth, as elections become more competitive and judges are forced to raise more and more dollars to hold their seats, what are we to do about addressing the question of conflicts caused by election fundraising? Are current recusal practices and policies clear? Are they sufficient?
These are not easy issues. Our instinct may be to place our collective heads in the sand. But as hard as it may be, we must begin these discussions. We should approach them with an inclusive spirit, placing the public’s interest over all others, and with the awareness that we all have a stake in getting this right.
Michael W. Unger is President of the Minnesota State Bar Association. He is a Certified Civil Trial Specialist at Unger Law Office in Minneapolis, representing negligence victims for serious injuries and wrongful death. He is also on the adjunct faculty of the University of Minnesota Law School.