Nick Coleman: Pawlenty's legacy may be tipping state's high court in so many ways

By Nick Coleman, Star Tribune

Last update: December 4, 2007 - 10:10 PM

There are 35,000 attorneys in Minnesota. Last week, Gov. Tim Pawlenty, looking for a new Supreme Court justice, plucked from that crowded field a personal friend and political consigliere named Christopher Dietzen.

If you think it was because Dietzen was No. 1 in Lawyer Land, you are sweet but naive.

Dietzen, a conservative whom Pawlenty appointed to the Court of Appeals in 2004, will take a seat on the seven-person Supreme Court in January. Dietzen is likely to tip the balance of the high court, moving it hard to the right and making it more open to challenges to state law on a broad front of social and sexual issues where the court has been reluctant to tread.

Dietzen was one of three judges given Republican Party endorsement in 2006, has been a financial contributor to Pawlenty and, as a Pawlenty campaign attorney, helped the Republican steer his way out of a jam when his 2002 campaign ran afoul of election laws and had to pay a $100,000 fine.

"It gave me a chance to see his skills up close," Pawlenty said when he picked Dietzen for the high court, bypassing a judicial screening committee.

A brawler is important when your campaign has to go to the mattresses, but those skills won't be very useful on the Supreme Court. Unless that's why Dietzen is being put there.

Pawlenty intended to signal his base that the court is in safe, right-wing hands. In a fundraising e-mail sent to supporters, Pawlenty touted Dietzen's appointment in language made infamous by Richard Nixon:

"[Dietzen] has proven himself to be a strict constructionist who will follow the rule of law with impartiality," Pawlenty said. "In a time when legislating from the bench has unfortunately become commonplace, Judge Dietzen has continually used judicial restraint and common sense."

Legislating from the bench? In Minnesota? Baloney.

In truth, the Supreme Court has been regarded by observers to be a cautious and contemplative court that has been collegial and consensus-based.

"It's been a very measured court," says Peter Knapp, a professor at William Mitchell College of Law and co-director of the college's clinic program. "If the court gets more conservative, it might become less likely to take controversial cases."

I hope Knapp is right. But that may be wishful thinking.

There have been a number of 4-3 split decisions on questions of civil liberties and other issues recently. Generally, the court has divided with liberal Justices Helen Meyer, Alan Page and Sam Hanson on one side, Paul Anderson in the middle and, on the right, Justices Barry Anderson and Lorie Skjerven Gildea joining Chief Justice Russell Anderson.

Hanson, however, is leaving the court, to be replaced by Dietzen. In five years as governor, Pawlenty has named three of the seven justices -- Gildea, Barry Anderson and Dietzen -- and last year promoted Russell Anderson to chief justice.

Dietzen burnished his conservative credentials by writing a July Appeals Court opinion overturning a ruling that the repeated "Biblically based paddling" of a 12-year-old Bloomington boy did not constitute physical abuse.

That opinion won Dietzen praise for upholding "parental rights" from "pro-family" groups that support Pawlenty, despite Dietzen's tortured finding that the "chosen form of discipline for [the son's] knife-wielding and suicide threat may not have been the best approach."

Wow. Sometimes, a judge has to work really hard not to be "an activist." And sometimes, deciding not to act is to act.

A month ago, after reviewing his credentials and his connections, Dietzen "let it be known" he was available for a promotion. Pawlenty had found his needle in a haystack.

Minnesota now has a Pawlenty Court, much as the United States has a Bush Court. Ironically, the Minnesota bench now may become far more truly an "activist" court than it has been painted by Pawlenty and his political supporters. That could spell trouble for many.

Because in an era when social conservatives are pushing for constitutional bans against same-sex marriage and abortion rights and trying to "roll back" many decisions of the past four decades, all the activism will likely come from those "strict constructionists."

Nick Coleman • ncoleman@startribune.com