Jack Nordby: Beware idea of judicial retention vote

  • Article by: JACK S. NORDBY
  • Updated: March 10, 2010 - 5:54 PM

Far from increasing independence, as supporters claim, it would likely reduce it.

The first aspiration of all oppressed peoples is to elect their governments -- the right to vote. Look at Iraq. It is surely a sign of profound decadence that a society -- in this case Minnesota's -- should undertake to strip itself of that privilege. Yet we are being told that we should docilely surrender the right to elect our judges (for our own good, mind you).

The Legislature is being asked to put a proposed amendment to the Minnesota Constitution on the November ballot. It would eliminate competitive elections for judges, instead requiring judges to stand for so-called retention elections through which voters would either retain or unseat a judge. Vacancies would be filled by another gubernatorial appointee.

The debate on this insidious proposal, including the exchange of views and editorial in these pages on March 7, overlooks or conceals several crucial considerations, among them these:

•Ironically, the imagined threat to judicial "independence" apprehended by the anti-election forces is another core constitutional value: free speech. The elitist theory is that voters are too ignorant to make proper decisions in elections where freely financed candidates can openly discuss the issues.

•The framers of our Constitution, in 1857, considered the same concerns and rejected them in favor of elections.

•By default and manipulation within the political-judicial establishment, elections have long since been largely usurped by governors, who already appoint judges in most cases.

•Those governors have a uniformly shameful record of elitism, favoritism and exclusion. No governor has ever appointed an African-American, Hispanic, Asian, or Native American to the Minnesota Supreme Court, and only one Jew. (The only person of color ever to sit there was elected.) The present proposal will codify and perpetuate this racist tradition. We should not be increasing the governor's control of the judiciary, but, if anything, eliminating or reducing it.

•The proposed "retention elections" are a sham, not elections at all. They eliminate both the voters' right to an alternate choice and prospective candidates' rights to seek judicial office.

•Probably the single most important feature of our constitutional system is the separation of powers, the checks and balances that prevent one branch of government from gaining ascendancy and control over other branches. But we are now told we should give the executive virtually total control of the judiciary.

This amendment itself may well be unconstitutional.

The promoters of this dangerous delusion fret that a deep-pocketed contributor may elect a judge favorable to its interests. But at the moment of this writing the governor himself is subject of a lawsuit before the Supreme Court concerning unallotment. The chief justice of that court is his former law partner; another justice is the spouse of one of his major fund-raisers; another was the lawyer for his political party; he appointed them, and another justice as well -- a majority of the court. This, we are led to believe, exemplifies "judicial independence."

The effort to abolish elections bodes ill for us all -- except for the power-hungry executive and the self-serving judges whose goals are the hardly noble ones of perpetuating incumbency and avoiding expensive challenges.

And, as even they must admit, we have never had an over-financed judicial election in Minnesota. One hopes we would at least await some evidence the system is broken before we set out to fix it.

Our laws already provide for removal of judges from cases in which their impartiality can reasonably be questioned. Thus, even if someone managed to buy a judge, the chosen one could not hear the supporter's case.

It is one thing -- usually benign -- to alter a constitution to strengthen individual liberties. It is another and ominous thing altogether to do so to abolish them.

Jack S. Nordby, Plymouth, is a Hennepin County district judge.

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