"If we continue to go down this road, I think you're going to have extremely expensive judicial elections, in which all of the special-interest groups are involved, and all of the political parties are involved, and we're going to have justice dispensed by political philosophy rather than by what the law really states," Abrams cautions.
Judicial elections have long been a source of consternation for politicians and government watchdogs alike, but resolution has so far proved elusive. In 1996 Sen. Carol Flynn offered a bill similar to the one Abrams is drafting, but it died. Also in the mid-1990s, a committee from the state's League of Women Voters spent two years studying the issue, only to conclude that there is no perfect system for selecting judges. In the end the committee recommended some small changes to the Minnesota system, such as redoubling voter-education efforts and requiring that a judicial candidate have at least five years' experience as a lawyer before running for judge. (Although the League of Women Voters has worked to educate voters about judicial elections, the five-year rule has never been adopted.) "The more they looked at other systems, the more they thought that our system worked pretty well," concludes league president Judy Duffy.
The chief criticism of the Missouri Plan is that it has the potential to open the floodgates for special-interest groups focused on a single issue, such as abortion or tort reform, to target a sitting judge who has made controversial rulings. An oft-cited example is that of former Tennessee Supreme Court Justice Penny White: After signing a 1996 opinion ordering a new sentencing hearing for a death-row inmate, White was caught in the crosshairs of a Republican-led campaign to oust her from the bench. She was unseated after garnering the approval of 45 percent of voters.
"You're not running against a real person," argues Sandra Neren, a lobbyist for the Minnesota District Judges Association, which has opposed any changes to the current election system. "In our minds and in the minds of judges in other states, every single election becomes a contested election. You have a perfect 'nobody,' who's never done anything controversial, or made a controversial decision, or done anything the public doesn't like."
The American Judicature Society's Seth Andersen concedes that judges are sometimes forced to tiptoe up to Election Day hoping some "group of crazies" doesn't come forward to oppose them. "The potential for more mischief in retention elections might very well increase," he admits. "That being said, it's still a better way to focus the public's attention on what we're voting on here: Is this a good, fair, impartial judge?" For the system to work, Andersen adds, the state must set up a "performance evaluation commission" to help voters make informed choices. Finally, Andersen and others note that ousters are extraordinarily rare under the Missouri Plan. In one study, Bradley University political science professor Larry Aspin found that between 1964 and 1998 only 52 out of 4,588 judges--1.1 percent--weren't retained.
If Abrams moves forward with his proposal, the Missouri Plan probably won't be the only option. In 1997 Sen. Thomas Neuville offered a plan under which all judges would be appointed by the governor after being vetted by a nominating commission (as in the Missouri Plan). The senate would then hold public hearings on the nominees and either confirm or reject them. Every eight years judges would have to be reconfirmed. Neuville's bill went nowhere in 1997, but the Northfield Republican says that if the issue comes up this year, he'll put it forth again. "I think we do want to have judicial independence, and judicial independence is not guaranteed by the election process we have right now," he asserts. "How can these judges claim to be neutral and independent when they're accepting endorsements from all these [special-interest] groups? They can't."
Any change to the judicial election system would require an amendment to the state constitution--and, therefore, approval by voters. "Everybody I've talked to has said, 'Great,' but it will be difficult to get through," Abrams admits.
Whatever the outcome, the debate comes too late for Kathleen Mottl. Despite her ad campaign, despite having been the only non-incumbent to win the endorsement of the Star Tribune, and despite facing an opponent whom the Hennepin County Bar Association ranked last among sitting judges up for election, Mottl lost to Kerr Karasov by a margin of 56 percent to 44 percent. The results, she says, were so disappointing that she still can't bring herself to look at the final tally.
She hasn't ruled out running again someday, though. And just in case, she's storing the lawn signs in her garage. In the meantime there's always the hope she'll win her judgeship the other old-fashioned way: "Each time I pick up the phone, I'm hoping it's Governor Ventura on the line, but it hasn't happened yet," she jokes.