Tuesday, January 17, 2012

Judicial paragons

Walter Hudson wrote last week about the big debate of the week at The Late Debate-judicial retention elections.  It was an excellent piece, and I can't think of a better compliment to Walter's integrity than this-he presented both sides so fairly that it was hard to tell what his own opinion is on the subject.  I'm not as eloquent, so I will say up front that I fully support judicial retention elections, and here are the three reasons why.

1) I want impartial judges
2) Political parties fighting judicial elections leads to hyper-partisan madness
3) Conservatives cannot compete financially on judicial elections

As a brief review, here is what the proposal for judicial retention election would do; stop the almost always futile practice of running non judges against sitting incumbent judges in general elections, give judges a formal review based on input from their peers and those who do business in their court, and make it easier to get rid of judges who are out of touch with their communities. 

Point one, impartial judges.

Call me a naive idealist, but I want judges who follow the law and the Constitution, not a party platform. Aside from the fact that the founding fathers never intended for our politics to be ruled by political parties, they certainly never intended for the judicial branch to be dominated by partisan politics.  The judicial branch should be the wise elders who dispense wisdom and justice from an unbiased position.  Is that naive?  Probably, but if we give up on this simple tenet of the system of government our founders envisioned, we are making a dynamic shift away from their vision.  Article 3, section 1 of the US Constitution says

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

But how can judges ever be deemed to have 'good behavior' if they are simple partisan activists, where at any given time at least 1/3 of the population will disagree with them simply because they are of the opposite party?  See also Wisconsin Supreme Court Recall election, where the public confidence in the courts has dropped to historic lows after a hyper partisan election.

Point two, hyper partisan madness in the courts.

Outside of political activists of either stripe, how many people in US society today simply drone out a political ad on TV?  How many people see partisan lit in the mail and throw it away as soon as they see a prominent 'D' or 'R'?  A recent Gallup poll says that the majority of respondents don't identify with either the Democrat or Republican parties-they call themselves independent.  Surely that is a backlash to the hyper partisan name calling displayed on the nightly news and on the front page of every newspaper.  Whether that name calling is justified or not is irrelevant-the discouragement of the average voter is what matters here.

We already have partisan battles in 2 of the 3 branches of government-why would we possibly want to extend that partisanship to the third branch?  Both political parties run the risk of either turning voters off from party politics and voting in general, or turning voters away and into a genuine third party movement.  And for all those of you who say a third party will never happen in MN or the US, I'd remind you that both Ross Perot and Jesse Ventura led independent movements that would have been lasting had they both not been such fundamentally goofy individuals.  American political history has a sad procession of political parties that lost touch with the people they claimed to represent and faded into the textbooks.

Retention elections would remove an unpopular judge and replace them with-wait for it-the next qualified candidate.  Political parties would have no vested interest in mounting hyper partisan election campaigns against judges when they can't select the replacement. They could spend thousands to get rid of one judge only to have a judge with similar positions put in their place.

Point three, conservatives can't compete.

Have you seen the headlines?  MNGOP 2 million in debt.  Conservatives in Minnesota are in no position to try to go head to head with liberal special interest groups on judicial races.  That didn't even work in 2010, when all three GOP endorsed supreme and appellate court nominees came up short, and who can forget how much special interest money went into opposing Tom Emmer.  2010 was a banner year for conservatives and the MN GOP in terms of money raised and dollars spent-and it was still not enough to win any major judicial election in Minnesota.

When you can finally admit that conservatives will be outspent if they engage in partisan judicial elections, then you have to remember the most sage advice on deploying your resources for battle-

Consequently, the art of using troops is this: When ten to the enemy's one, surround him. When five times his strength, attack him. If double his strength, divide him. If equally matched, you may engage him with some good plan. If weaker numerically, be capable of withdrawing. And if in all respects unequal, be capable of eluding him, for a small force is but booty for one more powerful if it fights recklessly.

Conservatives cannot win in a head to head battle for judicial elections.  But there is a win-win solution; take politics out of the judicial equation and let the judicial branch remain impartial.  The proposed amendment would create a selection board composed of members selected 1/3 by the governor's office, 1/3 by the legislature (equally by each party in both the house and senate) and 1/3 by the MN Supreme Court.  There is little chance of a partisan gerrymandering of this selection board against conservative values, so why not call a truce in judicial elections.

We conservatives have a decision to make.  Most in Minnesota already feel that they are locked in a battle for the direction of the state, and we fight that battle on two fronts; the governorship and the legislature.  Those who advocate partisan judicial elections are in effect asking the MNGOP to open a third front in the war-the judicial branch front.  While I am no anti war type, whether it is actual combat or political war, you can't commit to a new front if you don't have the resources available to fight it.  Did the US open a second front in 1942 or 1943, when the Russians and English begged us for it?  No, we wisely used our available resources where they could do the most good.

Judicial retention elections are not only a sound idea on their merits-removing partisan politics from the judicial branch-but they are a prudent path forward for a conservative base that cannot fill the coffers or man the defenses in a new partisan battleground.

I would encourage every Minnesotan, conservative or otherwise, to get more information about the proposed idea before rejecting it out of hand. 

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