Pawlenty's Supreme Court picks offer window into his judicial philosophy

Back row, left to right: Lorie Gildea, Helen Myer, G. Barry Anderson, Christopher Dietzen; front row, left to right: Alan Page, Eric Magnuson, Paul Anderson
courtesy State of Minnesota

On August 30, 2007, officers with the Rice County Sheriff's Department burst into the Faribault home of Sara Peck. Someone had called Social Services to report that Peck was using drugs with her small children in the house. The Sheriff's Department opened a child-endangerment investigation and got a search warrant.

As officers executed the search, they didn't find drugs, but they did see evidence of recent use. Among the items catalogued in the search were plastic bags, a digital scale, a spoon, and a pipe, all of which tested positive for methamphetamine residue. In the basement police found a bong still filled with water that tested positive for traces of meth.

The Rice County attorney decided to charge Peck with first-degree possession of a controlled substance, using the novel interpretation that the bong water was a "drug mixture" under the law, and therefore a controlled substance. The bong water weighed 37.17 grams, enough to bump Peck's sentence up to seven years.

The court disagreed and dismissed the charge. The county attorney appealed. The Minnesota Supreme Court agreed to hear the case.

On October 22 of last year, a narrow majority issued an opinion that has left legal analysts shaking their heads in bewilderment: Under Minnesota law, Peck's bong water was a drug, and she could be charged and sentenced based on its weight.

Every one of the four justices in the majority had been appointed by Gov. Tim Pawlenty. Each of the three dissenting justices had not. To many observers, the split was the most dramatic example of how Pawlenty's appointments have shifted the balance of the state's most powerful court.

With the governor in his final year in office, his court picks may be one of his most lasting legacies in his home state. And as he gears up for a likely presidential run, it also offers a window into what kind of judicial appointments a President Pawlenty might make.

Four months after the Peck decision, Chief Justice Eric Magnuson announced his plans to resign, after serving only two years. The chief justice gave no indication of the reasons, saying only that they were personal. He will continue to sit on the court until June, giving Pawlenty one last appointment.

Pawlenty's inner circle has so far kept mum about the short list of candidates for appointment, but court-watchers say his previous choices show he favors judicial conservatism.

"There's no question that Pawlenty's appointments have made the court more conservative," says Peter Knapp, a professor at William Mitchell College of Law who writes a review of Supreme Court decisions for Minnesota judges, noting that conservative justices are more likely to rely on the text of the law rather than weighing whether it makes sense in the modern world.

A lawyer himself, Pawlenty practiced labor law at Rider Bennet when it was ranked among the city's top 10 law firms. His wife, Mary, whom he met in law school, also spent time in private practice before becoming a Dakota County judge. So when it came time in 2004 for Pawlenty to make his first appointment to the state Supreme Court, his background had prepared him for the task.

Pawlenty chose G. Barry Anderson, an appeals court judge who, like Pawlenty, had started his career in private practice. Two years later, Pawlenty appointed his second justice, Lorie Gildea. She had started her career in private practice, at the firm of Arent Fox in Washington, D.C., and worked in Hennepin County as a prosecutor and a judge.

In 2008, Pawlenty made two more appointments: Christopher Dietzen and Eric Magnuson. Dietzen had been an appeals judge for four years, and before that had spent his entire career in private practice.

For 30 years, Magnuson had been a star at Rider Bennet, Pawlenty's old firm, and since 2003 had been heading up the governor's Commission on Judicial Selection, the body that provides the governor with appointment suggestions.

With Magnuson in place as chief justice, Pawlenty's appointees now constituted a majority on the seven-member panel, and it was this majority that ruled in the bong-water case.

Scott Swanson, a law professor at St. Thomas who has tried cases before the court, said the Peck decision shows just how far the court has moved with Pawlenty's appointments.

"They're much more doctrinaire now," he says. "Before Pawlenty, even the Republican appointees were still fairly populist when it came to criminal issues. The new majority is much more ready to side with law enforcement against defendants."

But the court has also demonstrated its political independence, most notably in Franken v. Coleman.

"There were a lot of people saying we were naive in Minnesota to think that the judiciary could be impartial in that kind of situation," Knapp says.

Indeed, as attention on the case grew to a fever pitch, it was revealed that Justices Gildea and Dietzen had both made personal donations to Coleman campaigns.

But as it turned out, the skeptics were wrong. Last June, the court unanimously affirmed the lower courts' ruling in support of Franken's election.

Chief Justice Magnuson has also spent much of the last year lobbying against the governor's cuts to judiciary funding.

"With Magnuson, I'm sure Pawlenty thought he was appointing someone who was like him," Swanson says. "But Magnuson's an independent cuss. He's ready to go around the state undermining what the governor wants to do."

So who will Pawlenty pick for Magnuson's replacement? Based on the pattern of his earlier appointments, it's a safe bet he'll select a conservative lawyer from the private sector.

"The thing about the kind of people that Pawlenty likes to appoint is that while their judicial philosophy is reliably conservative, they're deeply independent people," Swanson says. "Everyone on that court right now, whatever their judicial philosophy, they're smart and they go their own way." 

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