Judy Stuthman and Vivian Jenkins-Nelsen: How to select judges democratically but not politically

Choose them on merit; retain them (or not) with a well-informed vote. The result: Impartiality.

By JUDY STUTHMAN and VIVIAN JENKINS-NELSEN, Star Tribune
Published on February 26, 2008

Imagine you're attending a football game and a referee's call in the last seconds determines the outcome of the game. Later it is revealed that the referee had accepted money and gifts from the winning team. The fans wouldn't stand for it.

Will Minnesotans stand for a judicial selection system that will prejudice judges' decisions by allowing partisanship and money into judicial election campaigns? The independence of Minnesota's judiciary is at risk: We must act now if our courts are to remain impartial.

A U.S. Supreme Court ruling and other federal court decisions now make it possible for candidates for judicial office to announce their views on disputed legal and political issues; to seek, accept and use political party endorsements, and to directly ask for campaign contributions.

These rulings may uphold a judicial candidate's right to free speech, but they jeopardize the citizen's right to a fair trial. Once judicial elections are awash in money, driven by special interests, riddled with television ads and defined by party affiliation, what assurance will citizens have that the judge in the courtroom is looking at their cases objectively?

Is justice for sale? Consider the money spent for Supreme Court races. In 2004, more than $9 million was spent on one race in Illinois; in 2006, candidates in Alabama spent $13 million for a single court seat, and a 2007 race for a Wisconsin Supreme Court seat generated $6 million. Lower court races are also getting expensive: in 2006, one state saw a record-breaking $500,000 spent on a district court race. Television ads, generally negative, were featured in more than 91 percent of states with contested campaigns in 2006 and cost more than $16 million.

If we sit and do nothing, believing that it can't happen here, Minnesota will end up like those states where justice is already for sale to the highest bidder.

Judges are different from governors and legislators: They must be free to apply the law fairly and impartially, even if -- especially if -- their decisions are unpopular. There is no perfect way to select a judge, but the best for Minnesota is the merit selection/retention system. This method involves three steps:

• First, judges are initially appointed by the governor from a list of qualified candidates provided by a nominating commission. Minnesota has had a nominating commission for district court judges since 1979. It has worked well and has helped give Minnesota its national reputation for judicial excellence.

• Second, following their initial terms, judges are evaluated on their performance by a commission. Results are made available to the public, providing voters with good information. Both the evaluation commission and the nominating commission should be broadly based and nonpartisan.

• The third and final step is a retention election: At the end of the judge's term, voters choose to retain or remove the judge.

Any change in the way judges are selected in Minnesota requires a constitutional amendment. The history of the merit selection/retention system shows that it is the best by far at keeping political partisanship and money out of elections while giving the voters a voice. The Legislature should make sure that an amendment to establish a merit selection/retention system appears on the ballot in November. Then Minnesota voters can decide.

Judy Stuthman and Vivian Jenkins-Nelsen are copresidents of the League of Women Voters of Minnesota.

Commentary: A retention election for judges?

Mike Dean, Bemidji Pioneer
Published Sunday, February 24, 2008

Imagine this scene: a jury in a small Mississippi town returned a $41 million verdict against a notorious chemical company for dumping toxic waste into the town's water supply. In an attempt to avoid liability, the chemical company appealed the case to the Mississippi Supreme Court for final review.

The chemical company, fearing that the court will not lean in its favor, decided to influence the appeal through an upcoming judicial election. During the election, the company invests a few million dollars in the campaign of a pro-business candidate. In the course of a highly negative political campaign, its candidate is elected to the Supreme Court.

Fortunately, this story is based on fictional tale in John Grisham's new book, "The Appeal." However, sometimes the truth is stranger than fiction.

Across the country, state court systems are being auctioned to the highest bidder as politics and special interest money infects our courts. Over a five-year period in the mid 1990s, the winning candidates for the Texas Supreme Court raised a total of $9.2 million, with 40 percent of that money contributed by individuals or surrogates that had pending cases before the court. It is hard to argue that these contributors did not expect something in return for their generous investment.

Unfortunately, Texas is not alone in experiencing these problems. We only need to look across the border to Wisconsin, where candidates spent $6 million during the most recent Supreme Court race, which The Associated Press called the "nastiest and bleakest" in the country's history.

Minnesota is not immune from these problems. Until 2005, it was considered unethical for judges in Minnesota to seek endorsements from political parties and special interest groups or to proclaim their personal positions on controversial issues that may come before the court when standing for election.

However, a recent U.S. Supreme Court decision decided that these rules violate judicial candidates' right to free speech. This turn of events makes it increasingly likely that Minnesota's historically fair and impartial courts could soon be up for sale. Across the country, judicial elections are becoming expensive, rancorous partisan campaigns into which special interest money flows without end. We do not want or need this style of justice coming to Minnesota.

This legislative session, state leaders can safeguard our courts from influence of special interest money by creating a judicial merit selection and retention election process. These changes will focus judicial elections on actual performance on the bench, instead of special interest attack ads. It will also place a renewed emphasis on a public discussion of the quality and performance of judges, rather than political issues, and will better inform citizens about their choices prior to judicial elections.

Currently, 90 percent of judges run unopposed in Minnesota, leaving the voting public with no real choice. A retention election will force every judge to face an up or down vote and the performance evaluation commission will provide voters with an independent evaluation on how each judge is doing. This type of accountability will ensure the legitimacy of judicial elections and the courts' decisions.

It is not surprising that some district court judges resent this proposal. A retention election system will shine a bright light on the way that some judges operate, even if they would prefer to stay in the shadows.

But it is surprising that some legislators are content with waiting because they fail to see the crisis coming to Minnesota. We cannot afford to wait for a for the first $5 million Supreme Court campaign to hit Minnesota. Once established, a Texas-style judicial system will take a generation to repair. Minnesota needs leaders that will be proactive to avert a potential crisis, rather than sit idly by for the collapse of the impartiality of the judicial system to occur.

While most of us never have to open the courthouse doors and stand before the bench, the decisions issued by the judiciary impact our families and communities. We all want impartial and neutral judges who are free to make decisions based on the law and facts of the case, not judges who make decisions premised on the desires of special interests, political parties or the judge's campaign contributors.

As fiction, Grisham's story makes a great read. But, we would never want this type of narrative to play out in our own lives. In Minnesota, we expect judges to be fair and impartial.

All legislators should support a constitutional amendment this legislative session that provides for performance evaluation and retention elections for judges.

Mike Dean is executive director of Common Cause Minnesota, a citizen advocacy group that is committed to honest, open and accountable government.

How To Save Our Courts

In the February 24^th edition of Parade magazine, Justice Sandra Day O'Connor writes that she is "anxious about the state of the judiciary in America. I am not concerned about particular judges or cases, nor am I concerned about the judiciary shifting right or left. What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice."

"When so much money goes into influencing the outcome of a judicial election, it is hard to have faith that we are selecting judges who are fair and impartial. If I could do one thing to solve this problem, it would be to convince the states that select judges through partisan elections—that is, when a Democrat and Republican run against one another—to switch to merit selection instead. Under this plan, currently used in states such as Colorado and Nebraska, an independent commission of knowledgeable citizens recommends candidates to the governor, who appoints one of them as judge. After several years on the bench, the judge's name is submitted to the electorate, who vote on whether he should keep his position. This method decreases the importance of money and politics in the process while still allowing voter input on retaining each judge."

Read the complete article.

The Republican Eagle - Change urged in selection of judges

The Republican Eagle newspaper in Red Wing, Minnesota wrote about a visit by Minnesota Supreme Court Justice G. Barry Anderson. "Anderson — who spoke on behalf of Minnesotans for Impartial Courts although he is not a member — said judicial elections in Minnesota aren't much of a problem now. The group, however, fears the state's judicial elections may slide down a slippery slope of expensive campaigns funded by special interest groups, attack ads and partisan hostility.

Read the full article.

Mankato Free Press - Protect Judicial Impartiality

The Mankato Free Press endorsed the Quie Commission recommendations to reform the way that Minnesota judges are seated and retained.  The editorial board said, "The commission's majority report suggests the perception begs for a change. There is solid ground here, in that our democratic system relies on every appearance of integrity and the impartial interpretation of laws. The system is undermined when the wishes of campaign contributors, special interest groups and political parties are even perceived to emerge as considerations.

Read the complete editorial here - http://www.mankatofreepress.com/editorials/local_story_037194834.html

Star Tribune Editorial: Reform judicial elections this year

The Star Tribune called on legislators to support a plan to reform judicial elections this year.  They said, "That idea balances Minnesota's 150-year-old tradition of a citizen check on the judiciary with its similarly long-held insistence that judges be insulated from special interests. To secure citizens' respect, the merit selection and performance panels would need to be beyond reproach.

The Quie proposal will face resistance not only from interest groups that seek greater control over the courts, but also from Minnesotans who are not persuaded that their state's tradition of nonpartisan judicial elections is at risk. To them, Quie said at the Capitol yesterday, 'There's a tsunami coming.'

David Rottman of the Virginia-based National Center for State Courts told a state Senate panel Monday that it's only a matter of time before Minnesota experiences what neighboring states are witnessing. Last year, candidates for a Wisconsin Supreme Court seat spent $6 million; this year, candidates for chief justice of Michigan's high court are expected to raise and spend $20 million."

Read the full editorial - http://www.startribune.com/opinion/editorials/15289391.html

Minnesotans for Impartial Courts Kickoff

Minnesotans for Impartial Courts (MIC), launched a statewide education and lobbying campaign urging the Minnesota Legislature to approve a constitutional amendment enacting retention elections for judges. The campaign will inform the public of emerging threats to the fairness and impartiality of Minnesota's judicial system, and advocate for a ballot question for voter consideration in the November 2008 election.

Read about the event in the following newspapers -

Star Tribune - http://www.startribune.com/politics/state/15070526.html

Pioneer Press - http://www.twincities.com/ci_8134647?source=rss

Rochester Post-Bulletin - http://postbulletin.com/newsmanager/templates/localnews_story.asp?a=326245&z=16

WCCO - http://wcco.com/politics/judicial.elections.reforms.2.642751.html

KSTP -  http://kstp.com/article/stories/S331341.shtml

Stories also ran in –

Duluth News-Tribune
Bemidji Pioneer
Worthington Daily Globe
West Central Tribune
Jamestown Sun (ND)
Dickinson Press (ND)
Grand Forks Herald (ND)
Fargo Forum (ND)