There's something fundamentally undemocratic about the third branch of American government -- and that's by design. The role of the judiciary is to uphold the Constitution and the rule of law, not to sway with the changing moods and passions of the political majority.
That's why alarms went off in this state when, in a Minnesota case, the U.S. Supreme Court said in 2005 that voters are free to elect judges in contests virtually identical to those that elect legislators and governors. Party endorsements, special-interest financing, attack ads -- all are permissible in election campaigns that decide who will sit at the district and appellate court benches, the high court held.
But decreeing full-blown electioneering permissible for judges is not the same as declaring it desirable. It is not -- not if Minnesotans are to retain confidence in their judges' impartiality.
It will take a change in the state's constitution to keep politics appropriately distant from the judiciary. A proposal for the sort of reform that's needed emerged last week from Minnesotans for Impartial Courts. It's a panel with a fine pedigree, headed by former GOP Gov. Al Quie, the founder of today's merit-based judicial screening process by Minnesota's governors. Among the backers of the proposal are former Vice President Walter Mondale, former GOP Gov. Arne Carlson, state Supreme Court Justice Alan Page, and -- as of yesterday -- Chief Justice Russell Anderson, the head of the state's judicial branch.
Their proposal is not to stop electing judges altogether. Rather, it's to lengthen the term of election from six to eight years, and disallow contested elections. Voters would be asked whether or not to extend the terms of judges appointed by the governor, a yes-or-no question. The governor would be required to select from among nominees recommended by a merit selection panel. And a judge's performance would be evaluated by a separate panel, whose findings would be made public before elections.
In short, voters could fire a judge, but not hire one. 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.
Rottman said that Americans concerned about the judiciary's loss of independence have their eyes on Minnesota this year. They hope this state will live up to its reputation for good government and craft a remedy for the politization of the judiciary that can be a model for the rest of the country. That kind of attention would do Minnesota proud.