Since the dawn of recorded time, one of the functions of government is to help decide disputes between citizens and between citizens and government.  This prevents the unnecessary (and occasionally bloody) conflicts that ensue from self-enforcement of legal rights.  Think vigilante mobs and feuds.  If justice is going to be something more than vengeance, then it should be rendered impartially and equitably.  Citizens need to have confidence that the person deciding their disputes has an open mind, knows the law and complies with the law.  The process for selecting such people has been the challenge.

In the U.S. federal court system, judges are primarily chosen by presidential appointment. The U.S. Constitution provides for the Executive Branch to select, and Senate to approve, candidates for federal judge, who serve for life.  This system provides a deliberative screening process for candidates by elected officials, but also then shields those candidates from political influence after approval.  While there are rancorous confirmation hearings at times, they are infrequent.  If candidates are well-chosen and the process well-handled, the appointee humbly takes his or her position and begins handling legal disputes that are typically free of any political content.  Do you care how the Minnesota federal courts decide random breach of contract suits?  Likely not, unless you're personally involved.  But you do likely want the disputes handled properly.

An appointment system, free of nasty election politics, favors a quiet, neutral and independent judiciary, which is essential for public confidence in justice.    The downsides are that work performance can vary over a lifetime, and federal courts are largely left to have to police their own performance.  This is in marked contrast to legislators who are regularly turned out of office for policy or performance reasons.  There are bad judicial eggs occasionally and the U.S. Constitution provides for impeachment.  Thankfully, this rarely occurs - mostly because judges tend to behave themselves! 

The U.S. Magistrate judge system provides another good model for balancing the need for qualified candidates with judicial independence.  U.S. Magistrate Judges were a creation of Congress under Article I of the Constitution to relieve some of the occasionally severe backlog in the federal court system.  Magistrate Judges in Minnesota are appointed by the local District Court for fixed terms - with the input of a local merit advisory panel of attorneys.  Persons can apply for the positions openly, and the process typically produces high-quality judges - again free of any political contest or election.

And now on to Minnesota state court judicial selection and the current controversy.  Being a populist state, Minnesota requires judicial elections.  The Governor, however, may appoint persons to judgeships that become open in between terms (whether through retirement or death).  In actuality, most judges in Minnesota get on the bench initially through appointment because most judges leave before the end of their term.  This is largely a function of custom.  The Commission on Judicial Selection then handles applications for appointment and makes recommendations to the Governor. 

Nonetheless, all Minnesota judges, whether initially appointed or elected have to eventually stand for election, which can be contested.  While few judges are turned out in these elections, which happen every six years, the people have a direct say in who gets to decide civil and criminal disputes.  Incumbents are typically re-elected because really there's no reason to move them out.  They're not public figures regularly clashing with opponents on matters of social controversy.  Rather, they're doing their job of processing and disposing of the 1000s of lawsuits, criminal proceedings, family court spats and other matters requiring calm and impartial intervention. 

So what's the problem?  Some have tried to push judicial elections in Minnesota in the direction of partisanship, campaign promises and big money.  Recall the Wersal case to the Supreme Court.  Full-fight elections would be a bad way to go.  The beauty of the impartial court system is that when and if we show up there we will get a fair hearing from someone who has not already announced their position on certain issues.  Compare this to legislative elections where that's exactly what we want. 

In response to the increased conflict in judicial elections, there are current efforts to move Minnesota to a retention election system.  All candidates would be appointed by the Governor and all candidates would be subject to periodic retention elections.  The public would get to vote yea or nay on keeping the judge.  If a majority votes nay, the Governor would then need to pick a new candidate. This system would preserve public input, but would keep the current relative low profile of judicial elections.  Whether this method goes forward should be a matter of clear and open public discourse, though it seems a sensible compromise.  One thing does seem clear though:  expensive, partisan and bitter judicial elections will do nothing to promote public confidence in the quiet branch.  That's not the Minnesota way.


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