Legal learning: How should we choose judges?
It was pretty amazing to see all the groups that got together recently to sponsor a meeting at the DECC in Duluth. The AFL-CIO and the Chamber of Commerce. The League of Women Voters, Common Cause, and the Bar Association. Former governors Al Quie (R), Wendell Anderson (D), and Arne Carlson (R). Former Chief Justices Kathleen Blatz, Sandy Keith, and Eric Magnuson, along with Justice Alan Page. All the big businesses in Minnesota (3M, Best Buy, BC/BS, Cargill, General Mills, Target, Medtronic, Microsoft, Xcel Energy). What issue could unite such a diverse group?
They call it the Coalition for Impartial Justice, and they want to change how we choose judges in Minnesota.
Judges have to run for election every six years, and right now any lawyer can run against a judge. In many states special interest groups have spent millions of dollars to get their own man elected. Just read John Grisham's novel The Appeal for a scary scenario of what can (and did) happen. Look at recent million-dollar judicial elections in Wisconsin and Illinois.
Candidates for most elected offices run on platforms. They want better roads, more cops on the street, financial aid for farmers, and so on. But judge candidates have never had platforms - "I will give maximum sentences to all defendants" or "I will give custody of kids to fathers." We want judges who will be impartial and fair. Yet since the Supreme Court decided Republican Party of Minnesota v. White (2002) and Citizens United v. Federal Election Commission (2010), we now have the spectacle of unlimited money being spent on judicial candidates who have platforms.
The remedy? Next November there will be a constitutional amendment on the ballot (if the legislature approves) to adopt the Impartial Justice Act. Instead of running against challengers, judges will run against their own record, and be voted up or down.
First, judges will be evaluated by a non-partisan commission appointed by all three branches of government, the majority of whom will be non-attorneys. Judges will be evaluated on standards including their integrity, impartiality, and knowledge of the law. Evaluations will be made available to the public, so voters know how their judges have performed.
Second, voters will decide whether to retain or replace a judge.
Third, if a judge is voted out, or a vacancy occurs, the governor will appoint the new judge. However, the appointment must be made from a list of three applicants chosen by the Judicial Selection Commission. We already use this Merit Selection system for district court judges, but the proposed law will include Court of Appeals and Supreme Court judges too.
I was a member of the Judicial Selection Commission for many years (appointed by the Minnesota Supreme Court), and I found the other members to be completely objective. I never even knew if they were Republican or Democrat - they just wanted to find and recommend to the Governor the three best persons available. If Minnesotans adopt this constitutional amendment next November, that is how all future judges will be chosen in Minnesota.
James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. The opinions expressed in this column are those of its author.