Mitch Pearlstein and Dane Smith: Instead of judicial races, retention elections

  • March 6, 2010 - 8:13 PM

We are think-tank presidents -- one conservative, the other progressive. When our views converge, we know we've hit on an idea that most Minnesotans will support.

Here's one: protecting the integrity and impartiality of Minnesota's state court system.

One of us believes the issue is important because government is a constructive force, and because a politicized judiciary will further erode the credibility of an unfairly maligned public sector. The other tends to serenade government less effusively, but worked for Al Quie decades ago and saw how the Republican governor instituted one of the fairest and most successful judicial selection systems in the nation.

The last thing Minnesota needs is to endanger that success by inviting the kinds of expensive and offensive judicial races that are undermining justice in states like Texas, Ohio and, more recently, Wisconsin.

In recent years, federal court decisions have altered the rules governing judicial elections, making it possible for judges to seek political-party endorsements, announce positions on issues and personally solicit campaign contributions. Consequently, judicial elections across the country are mimicking the costly, partisan and acrimonious contests common in the other two branches of government -- the same colossal costs, the same savage ads, the same distortions and debasement.

Bruising election battles are a part of politics. But judges are not conventional politicians -- or at least they shouldn't be.

Legislators and governors seek to enact specific political agendas; their supporters expect nothing else. Judges play a different role. Their job is to apply the law impartially.

The legislative arena is passion and sharp elbows, while the hallmarks of the judicial system are civility and objectivity -- or at least they should be.

When judges become entangled in nasty, high-priced elections, the public's confidence in the judiciary is inescapably diminished.

Imagine that you're involved in a lawsuit. A stressful enough situation, but now imagine learning that your opponents or their attorneys made enormous contributions to the reelection campaign of the judge deciding your case. Think it couldn't happen? A West Virginia CEO contributed $3 million to help elect a state Supreme Court justice there. That justice then cast the deciding vote in a decision overturning a $50 million verdict against the CEO's company. The U.S. Supreme Court eventually reversed the decision, noting serious risks of bias when litigants have outsized influence in electing judges.

Not surprisingly, in a survey sponsored in part by the State Bar of Texas, 48 percent of judges in that state answered either "very significant" or "fairly significant" to the question: "What influence do you feel campaign contributions made to Texas judges have on the decisions they make in the courtroom?" Such contributions are accelerating nationwide. In 2008, state Supreme Court candidates in 13 states raised $29.4 million.

To date, Minnesota courts have been isolated from these trends. Our judges earn high marks. Our judicial system is one of the state's best assets, but we must preserve and protect it.

A bill before the Minnesota Legislature (SF70/HF224) would protect our courts by further improving the system through which judges are selected and retained.

Currently, when Minnesota judges retire during their terms, they are replaced by gubernatorial appointments. This is how most vacancies on the bench are filled. Judges serve six-year terms and are open to election challenges.

The reform legislation would enhance voters' power while shielding judges from the corrupting influence of big-money and partisan elections.

The legislation would put a constitutional amendment on the ballot in November. Passage of the amendment would create a nonpartisan citizen commission to evaluate judges nearing the end of their terms. Assessment results would be made public. Voters would then cast an up-or-down vote on judges in what are called "retention" elections. Vacancies on the bench -- including those created if voters removed a judge -- would be filled as they are now, by gubernatorial appointment.

Opponents of this reform fall into two camps -- those who believe it would take away voters' power, and those who believe there is no need to prevent a nonexistent problem. We disagree.

Retention elections would actually increase voters' awareness and ability to remove unfit judges. Currently, few voters know anything about judges on the ballot. And, since 2000, 90 percent of Minnesota judges have run unopposed, essentially guaranteeing that judges will retain their seats even if an overwhelming majority of voters conceivably don't support them.

Armed with the new system's impartial assessments, citizens would be able to cast far more informed votes than they do now. Pivotally, all judges in a retention system would have to earn at least 50 percent of the vote in order to keep their seats, unlike the current system, which guarantees renewal in uncontested races.

It's true that we haven't had an ugly, expensive judicial election in Minnesota -- yet. But the poison of partisan, big-money judicial elections is seeping throughout the Midwest. Next door in Wisconsin, citizens watched $6.2 million pour into a 2007 state Supreme Court race, much of it spent by interest groups. It is foolish to think our borders offer a defense. The time to immunize against a disease is before it hits.

Dane Smith is president of Growth & Justice. Mitch Pearlstein is president of the Center of the American Experiment. Both organizations are members of the Coalition for Impartial Justice.

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