Monday, May 09, 2011

A vote of no confidence for our courts

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.


Walter Hudson said...

You can count on Tea Party opposition to this plan. The Coalition for Impartial Justice has approached us under the pretense of discussion, and we have shown interest in working on a solution which incorporates the best ideas from both sides of the MSRE issue. This 11th hour attempt to push through an amendment conveys that those efforts at outreach were not made in good faith.

Walter Hudson said...

"... We shouldn't be electing judges based on their political ideology, but rather their ability to interpret the law and apply it equally..."

That's just it. One's political ideology largely determines whether they will interpret the law and apply it equally.

Ron Niemala said...

The crux of this argument is "not about money", but rather about "disenfranchisement" and the "power of a few" to make determinations of individual qualifications of judges that "they" believe are appropriate. There is no such individual who is "not political in some manner". This was mentioned in the White case by Justice Scalia. This is a grab for more power by an over reaching judiciary and an attempt to consolidate greater power with fewer checks and balances.

Dave Thul said...

"One's political ideology largely determines whether they will interpret the law and apply it equally."

I absolutely agree. But I don't think the solution is to make judicial elections hyper partisan affairs. We have enough of that in the legislative and congressional races.

Andrew Smith said...

You will never get politics out of the judicial branch. Retention Elections just move it one level away. One of the arguments against Obama in '08 was judicial appointments. This system would just bring that fight to Minnesota. We will always get the government we deserve. We might be ignoring elections right now, but at least we have the system in place to fix that.

Franklin said...

This debate deserves to be elevated past empty rhetoric. Today's hearing (in addition to others scheduled - e.g., the same committee will hold hearings on a different bill on Thursday) was simply the legislature's effort to do so. Those seeking perfection will be disappointed from every system. The courts are not the legislature, and they are not an arm of the executive branch. As a different animal, both political and also not political, the conventions we use to analyze the other bodies do not apply. Kudos to Dave for this post.

Honest Patriot said...

Are you kidding me? Do you really expect Mark Dayton to appoint a judge who is anything but a Democrat? Do you believe Tim Pawlenty appointed anyone who wasn't a Republican? He actually appointed a judge who had no experience in litigation, who had not been vetted by any committee-- tell me this was not as partisan as is possible. The only difference in partisanship was that the voters were left out of it, so we did not personally see the drama. Don't kid yourself. I want a voice in the choice.

Dagny said...

I don't understand our opposition to this on the right. We all want people to be able to have a voice on decisions like these, but then we turn around and say that we want to keep a system that results in having 0 options. Every time I vote, I turn over the ballot and see a bunch of judges without anyone running against them. That might have been bearable when we had a string of Republican Governors making the appointments, but with Dayton in office, I'd really like to know I can 100% remove whoever he appoints. And if they did, I wouldn't now anything about them. The evaluation process may not be perfect, but it would be 100% improvement from the lack of information we have now. The only idea we have is to take the "I" off the ballot and spend more money on commercials. If it weren't for Greg Wersal talking to my BPOU last election, I wouldn't have given it any thought. But if that's all we've got, then I'll continue to write in Ted Nugent against every unopposed judge and pretend it's meaningful.

Milo H said...

Can someone please explain how we’re going to find people to run in all 315 of these contested elections that are going to give us a role in Democracy? As far as I can tell, sticking with regular elections isn’t going to change much. At least with retention elections there’s an opportunity to change things up that doesn’t depend on someone else be willing to run.