Judy Stuthman and Vivian Jenkins-Nelsen: How to select judges democratically but not politically

Choose them on merit; retain them (or not) with a well-informed vote. The result: Impartiality.

By JUDY STUTHMAN and VIVIAN JENKINS-NELSEN

Last update: February 26, 2008 - 6:19 PM

Imagine you're attending a football game and a referee's call in the last seconds determines the outcome of the game. Later it is revealed that the referee had accepted money and gifts from the winning team. The fans wouldn't stand for it.

Will Minnesotans stand for a judicial selection system that will prejudice judges' decisions by allowing partisanship and money into judicial election campaigns? The independence of Minnesota's judiciary is at risk: We must act now if our courts are to remain impartial.

A U.S. Supreme Court ruling and other federal court decisions now make it possible for candidates for judicial office to announce their views on disputed legal and political issues; to seek, accept and use political party endorsements, and to directly ask for campaign contributions.

These rulings may uphold a judicial candidate's right to free speech, but they jeopardize the citizen's right to a fair trial. Once judicial elections are awash in money, driven by special interests, riddled with television ads and defined by party affiliation, what assurance will citizens have that the judge in the courtroom is looking at their cases objectively?

Is justice for sale? Consider the money spent for Supreme Court races. In 2004, more than $9 million was spent on one race in Illinois; in 2006, candidates in Alabama spent $13 million for a single court seat, and a 2007 race for a Wisconsin Supreme Court seat generated $6 million. Lower court races are also getting expensive: in 2006, one state saw a record-breaking $500,000 spent on a district court race. Television ads, generally negative, were featured in more than 91 percent of states with contested campaigns in 2006 and cost more than $16 million.

If we sit and do nothing, believing that it can't happen here, Minnesota will end up like those states where justice is already for sale to the highest bidder.

Judges are different from governors and legislators: They must be free to apply the law fairly and impartially, even if -- especially if -- their decisions are unpopular. There is no perfect way to select a judge, but the best for Minnesota is the merit selection/retention system. This method involves three steps:

• First, judges are initially appointed by the governor from a list of qualified candidates provided by a nominating commission. Minnesota has had a nominating commission for district court judges since 1979. It has worked well and has helped give Minnesota its national reputation for judicial excellence.

• Second, following their initial terms, judges are evaluated on their performance by a commission. Results are made available to the public, providing voters with good information. Both the evaluation commission and the nominating commission should be broadly based and nonpartisan.

• The third and final step is a retention election: At the end of the judge's term, voters choose to retain or remove the judge.

Any change in the way judges are selected in Minnesota requires a constitutional amendment. The history of the merit selection/retention system shows that it is the best by far at keeping political partisanship and money out of elections while giving the voters a voice. The Legislature should make sure that an amendment to establish a merit selection/retention system appears on the ballot in November. Then Minnesota voters can decide.

Judy Stuthman and Vivian Jenkins-Nelsen are copresidents of the League of Women Voters of Minnesota.

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