With the Wisconsin Supreme Court recount still going on, Minnesota has a chance to keep the specter of a full scale battle for our courts from ever happening here. We all saw what happened there-special interest groups unhappy with the legislature and Governor Walker tried to circumvent two branches of government by buying an election for the third. The fact that they came as close as they did should give every conservative pause.
While I am no expert on the law or judicial elections, the answer seems clear--take the politics out of the courtroom.
Today, the House Government Operations and Elections Committee will hold an informational hearing on a bill to take the politics out of selecting judges. HF 1666 would propose a constitutional amendment to create retention elections for judges in Minnesota, rather than direct head to head races. Retention elections are not new, in fact they are used in 20 other states. The plan would also create a public performance evaluation for all Minnesota judges, as well as ensure that judicial appointments are based on a recommendation from a bipartisan merit selection commission. In Minnesota the group behind this proposed change is the Coalition for Impartial Justice, and the bill was discussed briefly over at Politics in Minnesota last week.
At first glance, the idea may seem to go against conservative principles. It would prevent candidates from running for the office of judge, instead using a non partisan commission to provide a list of qualified candidates for the governor to select from for appointment. That gives a lot of power to the governor and the merit selection committee, which runs counter to small government libertarianism. But in this case I think reality trumps principle. How many people can name one judge they voted for last November? My ballot in Steele County had over 20 judicial elections. The only races where I even recognized the names were for the Supreme Court, and that only because I met the two GOP endorsed candidates at campaign events. Most people either do not vote for the judicial races, or simply check the box for the incumbent. Even if the voters are paying attention, 90% of judges in Minnesota run unopposed--so the voters have no choice, and some judges wind up with de facto lifetime appointments. With a retention election system, voters would have a choice 100% of the time.
So what are retention elections? Simply put, they are a chance for voters to remove a judge if they aren't doing a good job. But rather than pit one judge against another, a retention election simply asks the voters if they want to retain a judge. This means that there is no head to head race, no candidates attacking each other, and no reason for special interest groups to spend large amounts of money to effect the election, unless a judge has overstepped their bounds or violated a major principle. For example, last year in Iowa, three Supreme Court justices who decided that same sex marriage was permitted under the Iowa constitution lost retention elections. Rather than being an election where you need to convince the voters that one candidate is better than another, this was a simple referendum on the job performance of these three justices. If a judge is voted out (not retained) then the replacement is appointed by the governor from a pool of qualified applicants.
So why should we as conservatives be interested in this idea? Why spend the time and political capital on this, when there are so many other pressing issues? A couple of reasons that I can see. First, while political operatives will tell you that negative ads are popular because they are effective, in the big picture they are a turn off to the independent voters. Retention elections would keep Minnesota from being bombarded by more attack ads. Second, it would take politics out of the courtroom while enhancing accountability. We shouldn't be electing judges based on their political ideology, but rather their ability to interpret the law and apply it equally. Third, it would keep political parties from spending money and time on judicial races. With no disrespect to Tim Tinglestad or Greg Wersal, the GOP endorsed candidates for the MN Supreme Court last year, we lost the governor's race by only a few thousand votes. While it's impossible to say for sure that the money and resources spent by the GOP on judicial races would have made a difference in getting Tom Emmer across the finish line, it is clear that money was a huge factor. Focusing less on judicial candidates and more on the endorsed candidates for house, senate and the governor's office would be a significant benefit to the party.
But the biggest reason conservatives should take a good hard look at this plan is the same reason we are pushing for photo ID at the polls-guaranteeing the integrity of the system is a win for everyone.