There's a constitutional amendment bill in the state legislature which would eliminate the constitutional requirement for judicial elections and replace them with retention elections. It's SF 70/HF 224 sponsored by Senator Rest and Representative Simon respectively. It would expand judicial terms from 6 to 8 years, establish a judicial performance commission made up of appointees made by legislative leaders and the Minnesota Supreme Court and use standards approved by the Supreme Court, and replace contested elections at the end of a judge's term in office with a retention election which would allow people to only vote yes or no on keeping them in office.
The bill had its first hearing this week and those supporting it represent a "Who's Who" of the Minnesota political and legal establishment. Former governor's Al Quie and Wendell Anderson, former Senate majority leader Roger Moe, former Chief Justices of the Minnesota Supreme Court Russell Anderson and Kathleen Blatz, and current Justices Barry Anderson and Alan Page to name a few.
I oppose bill on the principle of public accountability of judges. The greatest threat to justice in Minnesota is not contested elections but an unaccountable judiciary. That's why the drafters of our constitution included in the Minnesota Constitution contested judicial elections at the end of a judge's six-year term. They saw the exercise of raw, unaccountable judicial power in the US Supreme Court's 1857 Dred Scott decision, so in 1858 they inserted a contested elections provision in the Minnesota Constitution to insure judges are accountable to the people.
Until 1913, there were partisan judicial elections in Minnesota, but then the legislature made the elections nonpartisan. And in the early 1960s the Minnesota Supreme Court placed restrictions on the ability of judicial candidates to make public statements on political and legal questions and identify with a political party. Those restrictions were struck down by the US Supreme Court a few years ago.
Now that contested elections are fair game, many judges are apoplectic at the thought of facing an opponent every time they are up for re-election. Why? I think temperamentally judges disdain the idea of raising money and running a campaign. It seems to them unseemly. It makes their role as a judge too political. They also believe competitive elections will reduce the credibility of the judicial system. Judges will no longer be viewed by the public as independent, fair and impartial. Justice be replaced by special interest, power politics.
I personally am not wedded to the idea of contested elections as the only answer to the accountability concern. I think retention elections can serve that purpose as long as the people can also initiate a recall election through a referendum process before a judge's term expires. I think that would insure accountability, because judges would realize they are no longer safe from public scrutiny until their next scheduled retention election. But the bill doesn't do that. It expands judges' terms to 8 years and eliminates the contested election process.
I also have problems with the judicial performance commission provision contained in the bill. It gives the Supreme Court the power to set the criteria by which judges will be evaluated. This means the Supreme Court will set the standards for evaluating their own performance.
I believe there's need to be a truly independent body evaluating judges not themselves. While I believe our current Supreme Court is made up of people of goodwill, I think their self interest as judges will invariably influence their view of what an independent judiciary should look like. And that can and does at times diverge from the public's concern. Allowing the Court to choose the criteria to evaluate judges will insure conformity by judges to standards likely to preclude one of the most important criteria in evaluating a judge's performance -- judicial philosophy. Does the judge understand and practice judicial restraint and not engage in judicial activism?
I noticed the bill's proposed criteria for judges can easily be read to preclude the evaluation of a judge's view of the law and their opinions in regard to judicial activism or restraint. I think this is one of the most important factors in evaluating a judge's performance.
I do think there is a legitimate concern that hotly contested partisan elections could diminish the credibility and impartiality of the judicial system if judges become beholden to particular interest groups. But I don't think that's the greatest threat to justice -- unaccountable use of judicial power is the biggest threat.
That said, I think that direct accountability to the people can be achieved through a retention election process as long as voters can also initiate a recall election at any time during the judge's term. Immediate possibility of recall would definitely hold a judge accountable, probably more than a contested election, six years down the road.
So as an alternative to the proposed bill, I suggest keep judges' term in office at 6 years. Eliminate the judicial performance commission section. And replace contested elections with retention elections which can be initiated by voters before a judge's term expires.
I think this would address concerns about politicizing judges and judicial races while at the same time keeping judges accountable to the public.