Why we need a different kind of diversity on our courts

Gov. Mark Dayton recently appointed two appellate judges. He moved a Court of Appeals judge to the Supreme Court and a district court judge to the Court of Appeals. Both are women; one is gay. According to the Star Tribune, Dayton " … acknowledged his commitment to bringing greater diversity to Minnesota's judiciary, but said, 'I'm looking for the very best people … I got the best of the very best.' "

Diversity of culture is great. But I wish we would also try to empanel appellate courts with a diversity of legal experience. And I wish our appellate judges would give legal specialization the respect that they gave it as lawyers.

There is a big difference between our Court of Appeals and our Supreme Court. Because there are only seven justices on the Supreme Court and because it is a "policymaking" court of "last resort" for the state, Supreme Court justices have to be generalists. They have to decide all types of cases.

In contrast, our Court of Appeals is an "error correcting" court of 18 members.

Those who select and appoint judges seem to believe that any smart judge can research and properly decide any legal issue. So lawyers who specialized in criminal, real estate, tort or family law, once they become judges, suddenly "specialize" in … everything.

If it were true that any smart judge can properly decide any type of legal issue, we'd never have reversals or dissents. A reversal means that appellate judges on a higher court think one or more judges on a lower court were wrong. A dissent means that one of the judges on a court thought the decision of the others was wrong.

In short, with both reversals and dissents, which occur frequently, some judges understood the law and one or more others did not.

This one-size-fits-all approach also makes being a Court of Appeals judge unattractive to a lot of lawyers. (The Supreme Court is different because of its prestige.)

Consider a lawyer who specializes in real estate law, loves real estate law, is a real estate "guru." If that lawyer is appointed to the Court of Appeals, she or he may never see another real estate case, because at that court, judges are pooled and cases are randomly assigned to them. A real estate guru on the Court of Appeals may spend all of her or his time on criminal and family law cases.

If the Mayo Clinic were run like our Court of Appeals, they'd have one big department. They'd sometimes assign a cardiologist to do a hip replacement surgery. After all, cardiologists are smart; some may even have watched a hip replacement surgery in medical school.

But isn't there a better way to do things?

Some argue that a legal decision isn't always the "one true" result; it's what a judge or a panel of judges decides is the best legal resolution of a dispute. But why then do we require juries to deliberate toward a unanimous result instead of just letting them vote?

But when our Supreme Court decides a case, a simple majority is sufficient. Instead of a resolution that declares the correct legal result based upon applicable principles and precedent, we often get a "vote" in which some justices decide for one side and some for the other.

I actually think that our Supreme Court does make an effort to obtain unanimity. I had one case before it where the justices took 16 months between when we argued and when they issued a decision. I'm sure they were working at something during that time. The result was a 4-3 decision.

Converting lawyers into generalists when they become judges also discourages, rather than encourages, a collaborative effort. If we assembled a law firm to handle the variety of cases that the Supreme Court decides, would we hire seven lawyers who are all nice and smart and culturally diverse ­— but completely ignore their areas of legal expertise? Certainly not.

The firm would hire specialists in various areas of law and expect each to bring depth to any discussion of their specialty. Other lawyers would look to that specialist to help provide a deeper understanding of that area of law, but each would still bring her or his own judgment to bear on the case.

But when we appoint judges as generalists without regard to specialization, we suggest to each that no one else has any deeper knowledge than she or he does.

It would make being a judge a lot more attractive to a lot more lawyers. And it would improve our chances of actually getting the "best of the very best" ­— not only in terms of quality individuals, but in terms of the courts' performance overall.