The right-wing litmus test, part two: Judges

  • Article by: LORI STURDEVANT , Star Tribune
  • Updated: February 28, 2014 - 6:33 PM

A legislator who failed the first such test — same-sex marriage — should consider “flunking” again.

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State Rep. David FitzSimmons, R-Albertville, at the opening of the 2014 legislative session: Freed from re-election pressure, could he be key to the judge debate?

Photo: Glen Stubbe • Star Tribune,

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State Rep. David FitzSimmons’ vote for the final version of the 2013 same-sex marriage bill — which he had successfully amended to better shield dissenting religious institutions from lawsuits — seemed more than sufficient to rile up the Republican faithful in the Wright County Bible Belt.

But for good measure, those aiming to purge the first-termer from Albertville as an infidel disseminated what he said was an untruth. They said he wants to deprive Minnesotans of their chance to vote for judges.

It isn’t so, FitzSimmons said last week after taking himself out of the running for re-election in District 30B. He insisted that he has not taken a position on the push initiated nine years ago by former Republican Gov. Al Quie to change judicial elections from contests between candidates to uncontested, yes-or-no “retention” elections.

But FitzSimmons’ opponents have. They’re agin’ it — and they are increasingly willing to make the manner of Minnesota judicial elections a conservative litmus test in Republican endorsement contests.

That worries Quie, and it ought to worry all Minnesotans who prefer their judges to be unbeholden to political power players. Open-minded Republicans like FitzSimmons are feeling political heat to reject retention elections, fueled by the falsehood that the proposed change would “take away a vote” from Minnesotans.

It’s also why the DFL-dominated 2014 session increasingly looks like do-or-die time for the constitutional amendment Quie and the Coalition for Impartial Justice want to put before voters. And why a case of constitutional amendment fatigue among some DFL leaders in the wake of the defeat of two amendments in 2012 could be as adverse to the coalition’s project as hostility on the GOP right.

Inertia is also the proposal’s enemy. Minnesota has fared well with the way it elects judges now, the argument goes. Why change?

Because change is unavoidably coming, the Coalition for Impartial Justice responds. And Minnesotans should seize the chance to control the change while they still can.

It’s increasingly evident that opponents of retention elections don’t want to keep filling judicial seats the way Minnesota has since Quie was governor, with merit-selected, gubernatorially appointed incumbents either facing token opposition or running unopposed every six years. (There was a slight departure from the merit part of that pattern in the Perpich years, but Gov. Rudy’s total impact on the judiciary was so positive that I’ll gloss over those hiccups today.)

The anti-retention crowd favors more high-profile, wedge-issue, big-money battles between sitting judges and challengers of their choosing. They want to dump judges they dislike and replace them with their own ilk.

What they know — and many Minnesotans don’t — is that they can engineer that change without altering state law. All it requires is a break with tradition.

What they also know — but are obfuscating — is that the Coalition for Impartial Justice proposal does not deprive Minnesotans of the power to decide via the ballot whether a judge can continue to serve. Retention elections let voters toss a bum out.

But they don’t let a judge’s critics fill his or her seat. New judges would arrive on the bench via gubernatorial appointment after first passing muster in a merit-based screening. Sitting judges would also be subjected to a performance screening by a nonpartisan panel before they stood for election, with the panel’s evaluations made public.

In other states, when court critics have lost the ability to put one of their own on the bench, they’ve lost interest in spending large sums on ads replacing a judge’s given name with “Dump.” But that’s not always the case. In Iowa, which uses retention elections, three state Supreme Court justices were ousted in 2010 by forces opposed to same-sex marriage. But Iowa’s new justices were then chosen via a merit-based process. The quality of the Iowa Supreme Court was thus protected.

“Quality choices — that’s the most important issue here,” Quie explained. At age 90, he’s still riding his horse and still making editorial-board rounds for the betterment of this state. “The goal is to improve the chances that justice will be served,” he said.

That argument was underscored by his sidekick on his Star Tribune visit, former Minnesota Supreme Court Chief Justice Eric Magnuson, who also has a Republican pedigree. The Coalition for Impartial Justice also includes former Govs. Arne Carlson and Wendell Anderson, three other former chief justices, seven former members of Congress, and both the state Chamber of Commerce and the League of Women Voters. Backers of retention elections are in very good company.

The prospect of a big-money, mud-bucket contested election has some Minnesota judges “practically breaking into a sweat” today, Quie said. “When I chose not to run for governor [in 1982], I realized, that pressure wasn’t on me any longer. It was just freeing to have that. I want judges to be free like that.”

Most legislators haven’t felt that kind of freedom from political pressure. But as of last weekend, FitzSimmons does. Maybe now would be a fine time for him to get off the fence on judicial elections. My guess is that — unlike District 30B GOP delegates — the Coalition for Impartial Justice would be proud to claim him.

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