The Minneapolis Star Tribune published a very telling editorial Tuesday, claiming that political party judicial
endorsements put impartiality at risk.
Those who think electing judges should be a lot like electing legislators got their way at the Republican state convention Friday. Three judges — one state Supreme Court justice, two members of the Court of Appeals — were awarded the party's label, whether they wanted it or not.
It did not matter that Supreme Court Justice G. Barry Anderson issued a release spurning party endorsement, or that appellate judges Christopher Dietzen and Gordon Shumaker declined to respond to the party's query about their interest in being endorsed. Endorsements are made for the benefit of the party's voters, not the candidates, argued those promoting the practice.
"Whether or not she wants this endorsement is almost irrelevant," said Greg Wersal, the Golden Valley attorney who has spearheaded efforts to put more partisan politics into judicial elections. He referred to the one appellate judge who was denied the party's blessing, Jill Flaskamp Halbrooks. She, too, did not want to play — but the convention slapped her with a "rejected" sticker anyway.
We beg to differ with Wersal. Whether or not sitting judges and their challengers seek and employ the official blessing of political parties is quite relevant to things Minnesota voters ought to prize — the independence and quality of their judiciary.
Let me begin by correcting a few mistakes in the above.
- To say that those who agree with Mr. Wersal want more rhetoric and rancor in judicial elections is unfounded.
- It surely does matter that some justices "spurned" party endorsement. This is information of use to the voters as I'll note below.
- Greg Wersel's activism was to secure his right to free speech in seeking elective office, not to politicize the elections themselves.
Continuing,
Already, candidates with clear partisan ties are surfacing, without waiting for the gubernatorial appointment that customarily starts a judicial career. St. Paul Council Member Jay Benanav, DFL, has filed preliminary papers for a candidacy, and Republican state Rep. Scott Newman from Hutchinson is openly asking for his party's endorsement for the First District bench. (The special endorsing convention he seeks is not yet scheduled.)
Their candidacies are exceptions, but, thanks to the Eighth Circuit court, what had been the rule in Minnesota is at risk of crumbling. Gubernatorial appointment, following nonpartisan, merit-based screening, has been the primary pathway to the bench in this state.
Candidacies such as Newman's, buttressed by party endorsement and, inevitably, by big-buck campaigns, threaten to give Minnesota a different judicial selection process, one driven by elections. It would result in judges more beholden to special interests, more allied with partisan factions and less likely to inspire public confidence.
Again, a couple of corrections:
- The Eighth Circuit court did nothing but affirm the rule of law found in the Bill of Rights.
- Customs are just that, customs. They have no force of law, not even the moral legitimacy to suspend a citizen's right to file and campaign for an elective office.
Finally,
Justice Anderson appears cognizant of that risk. His statement urging the Republican Party to refrain from endorsing him was heartening: "Because I believe that partisan political endorsements are neither appropriate nor helpful in maintaining an impartial judiciary, ... I will not seek, nor use, partisan political endorsements in connection with any campaign for judicial office."
Our prayer is that every other judge and would-be judge in Minnesota feels the same, and says so.
The primary premise of all this is that the public is too ignorant to get it right at the ballot box. Here's a shock: in this case, I agree. But the cure is not to pass unconstitutional limits on campaigning. The real cure is to not have judicial elections, except possibly to reconfirm those appointed by the Governor and Senate.
But today we do have judicial elections in Minnesota. If we are going to cast competent votes in these elections, we the voters need information. In this case, that information is difficult to obtain. We might look at our Supreme Court that upheld the Richfield / Best Buy fiasco and say those justices have to go. But how do you know if their opponents are worthy replacements? We need information.
Just as we can consider the opinions in the papers, we can certainly consider party endorsements as well. Too say that the current process is non-partisan is an unwarranted assumption. The majority party always has appointed and always will appoint the majority of the positions, and there's nothing wrong with this.
Similarly, there is nothing wrong with candidates seeking, and voters considering endorsements as a way of communicating their philosophy of the bench. They should not be used as the end of the argument, but really the beginning. If a paper endorses a judicial candidate, ask why. If a party endorses a candidate, ask why. If a candidate eschews an endorsement, ask why.
Impartiality requires accountablity. To hold candidates accountable, we need information, and endorsements from any source are part of that information flow.
Mr. Werzel's successful lawsuit means we now have more information to consider in voting for judges, as we always should have had under the Constitution. Even if this means a skunk or two sneaks through, it's the law. Indeed, this might be the impetus needed to revise the process itself via a Constitutional amendment.