In Search of Paragons: Selecting Judges in Minnesota

January 15, 2012 at 12:30 am | Posted in Political | 5 Comments
Tags: Benjamin Kruse, Bob Tatreau, Coalition for Impartial Justice, David Schumacher, Jack Tomczak, judicial reform, Merit Selection Retention Elections, Mike Franklin, MSRE, Sarah Walker, The Late Debate

Last week, over two back-to-back episodes of The Late Debate, talk radio co-hosts Jack Tomczak and Benjamin Kruse examined competing arguments for how judges ought to be selected in Minnesota. On the first night, David Schumacher and Bob Tatreau made the case for “free and open contested elections.” The second night belonged to Mike Franklin and Sarah Walker of the Coalition for Impartial Justice, an organization seeking to replace judicial contests with something called “merit selection retention elections (MSRE).”

If you have no idea what any of that means, you’re not alone. Public forums on the topic, of which there have been many, require a briefing on the issue before competing arguments can be understood.

Here’s the Cliff’s Notes version. Judges in Minnesota are currently subject to contested elections with one or more names on a ballot. However, in practice, few judges ever face a challenger, and fewer still have lost to one. A number of explanations have been offered as to why judges have not been effectively challenged. There were some odd rules about campaigning and fundraising which were, in recent years, struck down by the U.S. Supreme Court. What has emerged since is a debate between those who seek additional measures to strengthen contested elections and those who seek to amend the state constitution so that judges would instead face a retention election.

The options in a retention election are “yes” and “no.” You vote to either retain the judge or not. Under MSRE, judges who lost a retention election would be replaced by a gubernatorial appointee selected from a list provided by a merit selection commission.

Got all that? Let’s make it a little harder for you. Under MSRE, in addition to the Merit Selection Commission (which already exists in order to facilitate appointments when judges retire early or otherwise vacate the bench between elections), there would also be a newly formed Judicial Performance Evaluation Commission whose job would be to advise voters on whether or not to retain judges under the new election system. The performance commission would look at factors like punctuality, timely decision making, and respectful treatment of litigants – not how judges ruled on particular cases – and grade incumbents as well qualified, qualified, or not qualified.

This is pretty wonky stuff. It’s nonetheless important when you consider how much power the judicial branch holds. Judges need to be held accountable. The question these proposals attempt to answer is how best to do so. Do we leave the “performance evaluation” and “merit selection” to the voters? Or do we create commissions to do the job for us?

Activists come at this debate from different directions. Among the most vocal is the grudge-holding former litigant. As the North Star Tea Party Patriots coalition was coming together in 2010, we had among our ranks a particular activist (who doesn’t deserve to be named) for whom judicial reform was something of a crusade. For him, the debate was personal. This played out rather dramatically at a forum he organized attended by Al Quie which subjected the former governor to one “bad judge” anecdote after another. While the stories were certainly atrocious tales of injustice, they did not constitute an argument for any particular reform. The point that day seemed to be an indictment of the status quo.

Another kind of judicial reform activist is the attorney who would be judge. These are folks who have run or would like to run, but feel as though the current system is stacked against them. Perhaps the most prominent name is Greg Wersal, champion of the aforementioned Supreme Court cases which enabled challengers to more effectively campaign and fundraise.

Then there are “the good old boys.” At least that’s how some activists like to describe the Coalition for Impartial Justice and their sympathetic legislators in St. Paul. They are working hard toward the implementation of MSRE, fundamentally redesigning our judicial selection process.

That’s the background. So, what should we make of it?

For the objective onlooker who is neither a railroaded former litigant, potential judicial candidate, or member of the judicial establishment, it can be difficult to readily discern the “right” position. Believe me, it’s taken me two years. Jack Tomczak exemplified this confusion last week, all but committed to an anti-MSRE stance after hosting Schumacher and Tatreau, only to argue in favor of MSRE after an hour with Franklin and Walker.

Part of the confusion lies in the rhetoric on both sides. Opponents of MSRE don’t do themselves any favors by accusing the opposition of “trying to take away your right to vote.” A retention election is still an election, and failure to acknowledge it as such doesn’t do much for one’s credibility.

Of course, MSRE advocates also exaggerate for effect. On The Late Debate, Mike Franklin declared, “The other side is essentially standing for the proposition that Soviet-style elections, where there’s one name on the ballot, is okay 90% of the time.” He was referencing the fact that not many incumbents get challenged under the current system. Never mind that no one is arguing for the status quo. It’s an odd point to make when MSRE would ensure one name on the ballot 100% of the time. But hey, who’s tracking? Besides, calling your fellow Republicans “Soviets” makes great radio.

Behind all the rhetoric lies a simple test for determining whether you like MSRE. Do you believe that the judiciary is political or not? That’s the bottom line. If you believe judges are political animals, then leaving them directly accountable to voters is ideal. If you believe judges are somehow above the political fray, then subjecting them to contested elections runs the risk of dragging them off their high horses and down into the political dirt.

The effect of MSRE would be to insulate the judiciary from political consequences. “Every one of these processes is political…” Franklin said of proposals for reform on The Late Debate. “[Our goal is] to make sure that hot button issues don’t dominate the bench.” Of course, what makes an issue a hot button is the fact that voters care about it. So the translated goal is to make sure voters don’t dominate the bench.

It’s important to clarify that we are talking about “the bench” in the collective sense, not a particular judge, but the judiciary as an institution. Understanding that distinction is critical. MSRE advocates stress that retention elections “empower the voter” to oust sitting judges. This is true. However, retention elections bar voters from ever directly determining who will sit on the bench. So while a particular judge might be voted out for one reason or another, his or her replacement will not be vetted by the same voters. This allows the judiciary as a whole to withstand the wrath of the electorate, letting particular judges take it on the chin while enabling a political clone to replace them.

The euphemism for this political insulation is “impartiality and stability.” Whenever you hear someone talk about impartiality, your next question should be “by whose standard?” The choices presently offered are the standard of the voters and the standard of a 24-person commission appointed by a given political establishment. If you’re going to assert that the voters as a whole aren’t qualified to determine a judge’s impartiality, it seems strange to turn around and argue that 24 appointees somehow are. We’re not dealing with separate species here, voter sapien and voter superior.

As for stability, well, dictatorship is pretty stable. Justice seems a higher consideration.

Speaking of the Minnesota Chamber of Commerce’s support for MSRE, Sarah Walker tells The Late Debate, “…they need a few things from a judiciary… they need impartiality and stability…When you have contested elections, like if you look to the south, often times there’s instability in the judiciary. And guess what, businesses work very hard not to have cases heard in those states.”

So, if you want business and jobs in Minnesota, you want to make sure there isn’t too much turnaround in your judiciary so that rulings are predicable. Never mind if they are just or lawful. The important thing is that investors know what they can expect. Is that really the argument?

Indeed, stability is the ultimate consideration that MSRE serves. When Greg Wersal and the Republican Party of Minnesota (MNGOP) went off and won those Supreme Court cases, they introduced an unstable element to the state’s judiciary – viable challenges to not just incumbents, but the philosophical makeup of the bench. MSRE only took shape as a proposal once those cases were won.

“They’ve now set us on this path,” Franklin said of Wersal and the MNGOP on The Late Debate. “… We get to look forward and say, ‘Do we want a full-throated political electoral system like we have next door in Wisconsin, or do we want some kind of a hybrid, or do we want a federal [style] system.”

Of course, if Franklin really wants someone to blame for the path set before us, he ought to look to the state’s founding fathers who saw fit to place contested judicial elections in the constitution to start with. All Wersal and the MNGOP did was drag the system a little closer to that intent.

Granted, it is entirely legitimate to propose changes to the constitution. That’s why the amendment process is there. However, it is instructive to note that the MSRE proposal has been made in answer to Wersal’s effort. In other words, as soon as it became harder to circumvent the intent of the constitution, a movement began to amend it. That’s somewhat like getting caught with your hand in the cookie jar only to then ask for a cookie. Sure, you’re within your rights to ask, but asking now doesn’t make up for the violation.

Consider this exchange from The Late Debate:

Mike Franklin: Do we have elections the way they’re set forth in the constitution? Well, on paper. But in practice for decades if not since statehood, the majority of judges have been appointed, not elected.

Jack Tomczak: Well, I think that is something that the other side isn’t all that happy with either.

Franklin: We would argue… we move to an all appointment system. We take the 90% of judges that are appointed today, and we make that 100%. But for that sacrifice, 100% of the time, between one and three years later… the voters directly get to hold that person accountable…

Note that Tomczak misunderstands Franklin. MSRE advocates aren’t upset about decades of a majority of judges being appointed rather than elected. Quite the contrary, as Franklin states plainly, their goal is to appoint all of them! Their goal is to ensure that no judge is ever placed on the bench by the voters.

It’s important to pause here and acknowledge that neither Mike Franklin, nor Sarah Walker, nor any other advocate of MSRE is pursuing evil. They simply believe whole-heartedly that voters should not select their own judges. Their rationale is that politics inhibits or prevents impartiality, and that judges shouldn’t be politicians.

But when the only mechanism for determining impartiality is other judges, such is it would be under MSRE, isn’t the proverbial fox guarding the henhouse? And as far as politics is concerned, isn’t the ability to rule on matters of life, liberty, and property an inherently political power? We’re talking about people who can single-handedly imprison you, fine you, seize your property, take away your children, dictate the conditions under which you live, work, worship, and educate and care for your family. Yet they’re somehow above a direct vetting by the people they serve?

That’s the question before us in this perennial debate. MSRE advocates like to present their proposal as a way to empower voters. To the extent retention elections would offer the ability to oust judges who might otherwise see no challenge, there is truth to that claim. However, empowering voters is not the net effect of MSRE. As Franklin and Walker made clear on The Late Debate, the net effect and intended purpose of MSRE is to insulate the judiciary from “hot button issues.” Offering a method to oust every judge is merely the populist sugar around that decisively non-populist pill.

That’s the point which must not be lost in the rhetoric of voter empowerment. While it sounds nice to have 100% of judges facing an election every few years, the result of those elections matters more than having them. Contested elections result in an elected judiciary. Retention elections do not.