Students of American history quickly will point out that the judicial experiment in this country has been under attack since its inception. In this light, the current conflict over judicial selection can be understood as simply one in a long series of assaults on our judicial system over the entire course of our history. Our current spate of difficulties is new only as to type, not as to intent.
Throughout our history, having the courts declare what is legal and illegal when those declarations run afoul of strong vested interests has never gone down well. Presidents Andrew Jackson and Franklin Delano Roosevelt are but two of the most prominent examples of unhappy opponents of judicial authority in such circumstances; they are hardly the only ones to have tested the system. Despite such attacks, the judicial system has survived.
If the system could withstand these earlier attacks, why should we – lawyers, judges and the organized bar – step in now and try and fight off the most recent effort to hamstring the courts?
Why Get Involved?
As lawyers, if not as human beings, we tend to be conservative in regard to the judicial system. We naturally incline toward an “If it ain’t broke, why fix it?” mentality. It is an inclination that I shared at the outset of the Quie Commission effort to search out solutions to the issue of partisan contested judicial elections. It was therefore with considerable reluctance that I agreed to participate in the Quie Commission hearings that stretched over the better part of two years.
However, early on in that process I encountered materials that gave me pause to reconsider. I noted that in a number of states where excessive fundraising has come to dominate the judicial selection process, where candidates for judicial office have been pressed to “telegraph” if not promise how, if elected, they would address issues coming before them, and where advertising during judicial election campaigns has slipped the bounds of taste, if not control. In other words, where the system has run off the rails, a common thread was that the state bar associations in those states had taken a hands-off attitude.
The MSBA Position on Judicial Elections
Unlike the bars in those other states, the Minnesota State Bar Association (MSBA) has taken the lead and offered its position on the issues that face us; it remains for individual attorneys and judges to consider the issues and make their voices heard.
The MSBA will support any change to the method by which we select judges in Minnesota that will minimize the influence that political parties and special interests can exert on judges, and that will minimize the need for judges to campaign and raise funds in order to get or keep their jobs. This is the official MSBA position:
- The association supports changing the method of judicial selection in a way that minimizes the influence that politics and money can exert upon judicial selection. The association prefers an appointive system in which a merit-selection commission nominates qualified citizens for judgeships, the governor appoints judges from qualified citizens that the commission nominates, and a judicial-evaluation commission can reappoint a judge. But the association also finds acceptable, and does not oppose, a retention-election system.
- The association supports the establishment of a commission that evaluates judges with respect to their qualifications, performance, reappointment, or retention. Any such commission should consist of members chosen in a diverse manner, by multiple appointing authorities that check and balance each other (such as the executive and legislative branches, the bench, and the bar), so that no single appointing authority controls a majority or nearly a majority of the commissioners.
Asking why, if the system could withstand earlier attacks, we should step in now and try and fight off the most recent assault, provides its own answer. The reason the legal system succeeded in fighting off earlier attacks is because the judges and the lawyers of those earlier times stepped up and confronted the danger.
It would certainly be simpler for me, and the organized bar, to sit this one out. But to those who ask, “Why get involved at all?” or, “Why not simply sit this one out?” I say, “If not attorneys, who? If not now, when?”
The judicial system in a number of other states that have ignored these issues is, in fact, broken. If we in Minnesota hope to avoid the fate of those states, the time to act is now.
Any change to the method by which we select judges in Minnesota that will minimize the influence that political parties and special interests can exert on judges, and that will minimize the need for judges to campaign and raise funds in order to get or keep their jobs will be for the good.
Now is the time to make that change.
Author: Michael J. Ford is president of the Minnesota State Bar Association. He is a member of the board of Quinlivan & Hughes, P.A., and a shareholder who practices in the areas of civil litigation, insurance coverage, employment and government liability and land use and general casualty law. He has served as president of the bar association of Stearns and Benton counties and the Minnesota Defense Lawyers Association. He has been selected as a Minnesota “Super Lawyer” each year since 2001.
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