Editorial: In judicial reform, a vote for retention

  • Updated: March 6, 2010 - 3:32 PM

Retention elections would keep special interests at bay.

An all-star lineup -- a former GOP governor, a former DFL Senate majority leader, and the current and two former chief justices of the Minnesota Supreme Court -- gathered in a State Office Building hearing room last week for one purpose. They see a threat to something that's been enormously important in Minnesota's shared life, and they're trying to avert it.

The threat is electing judges in partisan political contests that mimic races for the Legislature, Congress or governor. Judges in other states run with party endorsement and with the rich financial backing of interest groups ranging from litigious corporations to adversaries in the hottest social disputes of the day. Judges arrive in office beholden to such groups, with their impartiality in doubt.

It hasn't happened here -- yet. But it will, these leaders warned. And when it does, it likely will be too late to undo the damage Minnesotans' respect for their courts and the law will sustain.

The message delivered by Chief Justices Eric Magnuson, Russell Anderson and Kathleen Blatz, former Gov. Al Quie and former Senate leader Roger Moe carried the day last week with a House panel. It voted 14-4 to advance a constitutional amendment designed to lessen the encroachment of partisans and special interests into the judiciary.

That amendment belongs on the November ballot this year. It ought not get lost in this session's budget-balancing grind. Former Chief Justice Blatz, herself a former GOP legislator and veteran of a state budget crisis as severe as the one lawmakers face this year, advised House members that despite budget woes, the amendment is "one of the most significant pieces of legislation you'll deal with this year."

The remedy the amendment affords does not deprive voters of a role in shaping the judiciary, its critics' contentions notwithstanding. Voters would still weigh in. But they would be asked whether or not a sitting judge, appointed by the governor, should retain his or her seat. They would not be able to elect a new judge outright.

Experience in other states has shown that special interests are much less inclined to pour money into a judicial race when only a judge's retention is at stake. It's the opportunity to replace a sitting judge with someone congenial to an interest group's point of view that attracts big spending.

The amendment would also create a nonpartisan process for public evaluation of a sitting judge's performance. That evaluation would be made available to voters, providing them with more information than they have now in most cases about how a judge functions on the bench.

Earlier versions of the bill before the House also included a statutory change requiring governors to employ a merit-based process to screen judicial candidates before appointment. Governors since Quie have used such a process voluntarily. That provision was dropped, said the bill's sponsor, St. Louis Park DFL Rep. Steve Simon, out of concern that it would draw the opposition of Gov. Tim Pawlenty.

The bill would be stronger with that requirement restored. Merit-based appointments assure Minnesotans that when a retention election leaves a judicial seat vacant, something other than gubernatorial caprice will be employed to fill it.

As Blatz noted, retention elections are not much different from what Minnesota voters have traditionally found on the ballot. Most incumbent judges are not contested now. "I support change to keep the status quo," she said.

It takes extraordinary leadership to sell an argument that the state Constitution needs to change so that something close to the status quo can be preserved. Fortunately, some of Minnesota's best leaders of the last several decades are applying themselves to this task. The Legislature should join them and send this amendment to the people.

  • CHIEF WEIGHS IN

    "It's not a question of whether we're going to have hotly contested partisan elections. It is only a question of when.''

    Chief Justice ERIC MAGNUSON, before the House State and Local Government Operations and Elections Committee, March 4.

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