Charles E. Lundberg: How to vote for a judge when you don't know the first thing about it

  • Article by: CHARLES E. LUNDBERG
  • Updated: October 20, 2008 - 6:07 PM

If you are a regular reader of this page, it's a good bet you already know for whom you will vote for president, for U.S. senator, for Congress and probably for the Legislature as well. But unless you are a lawyer -- or otherwise have some special reason to know something about appellate judges -- it's probably an equally good bet that you have no idea how to vote in the contested appellate judgeships that will be on your ballot on Nov. 4. You may not even know who's running.

Every two years, several appellate judges must run for election. Typically, in recent years, at least one of them faces a challenger. This year, three do: Supreme Court Justices Paul H. Anderson and Lorie Skjerven Gildea and Court of Appeals Judge Terri J. Stoneburner.

What does the average citizen know about whether a particular appellate judge should be returned to the bench or returned to civilian life? Usually, very little. Hence, this short primer on how to vote for appellate judges. It's actually very simple. There are two ways to do it:

Option one: Consult with an experienced appellate lawyer -- someone who regularly practices before the Minnesota appellate courts and is therefore well-qualified to help you evaluate the judges.

Option two: If you don't know any experienced appellate lawyers, then follow this two-step process:

STEP 1: Find the "incumbent" label on the ballot for each race. By statute, all ballots for judicial races -- and only judicial races -- must show an "incumbent" designation if an incumbent judge is running. Most observers believe the "incumbent" label favors the incumbent, based on the assumption that voters who know nothing else about the candidates are likely to view an incumbent as the safer course. On the other hand, there are apparently a significant number of Minnesota voters who habitually vote against the incumbent judge. In almost every race in recent memory, the challenger has uniformly received a substantial portion of the vote -- usually in the 35 to 45 percent range -- even where the challenger is unquestionably unsuited for the bench.

STEP 2: Vote for the incumbent, unless there is a darned good reason not to. That's what experienced appellate lawyers recommend.

For the past several years, whenever there has been a contested appellate judgeship, more than 100 of the top appellate lawyers in Minnesota have evaluated the candidates and publicized their conclusions. These lawyers have both the unique qualifications and the professional responsibility to candidly assess sitting appellate judges. They include members of the state bar appellate practice section, the amicus curiae committees of both the plaintiffs and defense bar, the American Academy of Appellate Lawyers, and attorneys designated appellate law "SuperLawyers" by Minnesota Law & Politics. This broad and diverse group of appeal specialists (who rarely agree with each other on anything else) has overwhelmingly supported the incumbent judges on the ballot. This year 115 appellate lawyers in Minnesota support the election of Justices Anderson and Gildea and Judge Stoneburner.

There are several reasons for this. Generally speaking, appellate judges learn and improve and get better at the job over time. If an incumbent appellate judge is doing a good job handling appeals, there should be a presumption in favor of his or her election, absent some compelling reason to replace that judge with the challenger.

Second, with rare exceptions, attorneys who run against incumbent appellate judges are normally not as well-qualified or suited to the office as the incumbent is. That's just an empirical fact. All that is required for a person to run for appellate judge is a valid law license and a check for the filing fee. The absence of experienced appellate lawyers supporting a challenger should speak volumes.

Someday, no doubt, it will happen -- there will be a challenger who is more qualified than the incumbent. Here's how you will know it when it happens: First, an extraordinarily well-qualified challenger will file for office. Second, a sizable number of appellate lawyers will support the challenger. Unlike any recent election, and unlike this year, the incumbent will not receive the support of the overwhelming majority of the appellate bar. Third, the mainstream press will make note of this curiosity, and likely will also support the challenger. Until that happens, voting for the incumbent is the best guideline.

Charles E. Lundberg is a fellow of the American Academy of Appellate Lawyers and an adjunct professor at the University of St. Thomas.

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