The Golden Gavel

Hennepin County District Court Judge Kevin Burke: Not worried
Daniel Corrigan

If you are like most Minnesotans, you find yourself puzzled when it comes time to cast a vote for a judge. Despite the presence of competing names on the ballot, judicial elections in Minnesota are anonymous, milquetoast affairs. This is very much by design. Under state law, seekers of the black robe are prohibited from soliciting contributions, advertising their policy positions, and seeking party endorsements. In other words, they aren't allowed to act like politicians.

As a consequence, the average voter seldom knows much about the beliefs and qualifications of candidates for the bench, let alone their names. State Supreme Court Justice Alan Page is the exception that proves the rule--and he owes that distinction to his days as a sack artist with the Minnesota Vikings, not his subsequent status as a legal sage.

But Minnesota's quiet and quaint system of electing judges appears to be a thing of the past. Last week, after seven years of legal wrangling, the U.S. 8th Circuit Court of Appeals struck down the state's limits on judicial campaigning, ruling that the law violated candidates' free speech rights. Though an appeal to the U.S. Supreme Court remains a possibility, it is at best a long shot.

"It was, constitutionally, a very predictable decision," observes Hennepin County District Court Judge Kevin Burke. "I think it's a pretty hard argument to restrict participation in political activity in the face of the First Amendment." Burke, who has run unopposed in each of his four campaigns for the bench, doubts that Minnesota's judicial elections will turn into down-and-dirty, ad-driven political contests. He figures the public will simply continue to reelect competent incumbents and reject the duds. "I'm not fearful of this decision," Burke says. "I think I do a good job day-to-day on the bench, and that's how you get reelected."

That sanguine outlook is not shared by Laurence Hansen, vice president of the Joyce Foundation, a liberal Chicago-based charity, and an expert on money in politics. "It is really regrettable that Minnesota has to go down this road," Hansen says. "If candidates can announce how they will deal with issues, if they become identified overtly with one party or another, if they can solicit money--all of those things raise serious questions about the impartiality of judges and the impartiality of the judiciary."

In recent years, he notes, states with full-blown partisan judicial elections have produced some ugly campaigns. He points to last year's notorious race for a seat on the West Virginia Supreme Court in which the incumbent was accused of being soft on child molesting "and all sorts of heinous and near heinous crimes." Such spectacles, he adds, have only served to raise public cynicism about the judiciary.

But it's not just base politicking that concerns Hansen; it's the gobs of money involved. In the 2004 Illinois Supreme Court race, the candidates spent an astonishing $9.3 million--a figure that exceeded the amount spent in 18 U.S. Senate races held the same year. According to one recent study, issued by the Washington D.C.-based Justice at Stake campaign, there was an unprecedented nationwide surge in spending on the 2004 judicial races. In the 38 states with some form of judicial elections, the report found, candidates for high court posts spent a total of $46 million.

"But this is not just about the candidates or the parties misbehaving," Hansen adds. "It's about the Chamber of Commerce saying, 'We are going to spend $10 million around the country to elect business-friendly judges,' and trial lawyers doing essentially the same thing on the other side." With that dynamic in play, Hansen suspects, Minnesota will wind up with judges who are more beholden to--and more aligned with--special-interest groups.

Minneapolis attorney Mark Anfinson, a media lawyer (who counts City Pages among his clients), agrees that the Appeals Court decision will ultimately introduce "the scourge of fundraising" into the Minnesota judiciary. But as a First Amendment champion, he remains agnostic on whether a more open--albeit more partisan--process will be a bad thing for Minnesota courts. "What are we talking about when we criticize this?" he asks. "We're talking about sneering at the ability of the people to decide on their own governmental institutions. We're sneering at the democratic process." Such sneering--which, he notes, is especially common in liberal circles--has only served to energize the political and religious right.


That said, the Appeals Court ruling has also produced its share of sneering from the right. After the decision was issued, Bill Cooper, the former state Republican Party chairman who helped bankroll the lawsuit against the Minnesota law, crowed to the Star Tribune: "How shocking! The courts said that somebody running for election can say what they think. The founding fathers will roll over in their graves."

In fact, one of the founding fathers, Alexander Hamilton, probably is rolling over in his grave. In Federalist paper number 78, for instance, Hamilton argued in favor of lifetime appointment for judges and inveighed against popular elections. As Hamilton saw it, the framers needed to devise a judiciary that would "safeguard against the effects of occasional ill humors in society."

Attorney Anfinson concedes that the democratic process may not produce the highest-quality work on the bench. "The least democratic judges in this country are the federal judges," he says. "They get lifetime appointments. No elections ever. Yet, if you ask most lawyers in Minnesota to compare federal judges to state judges, it's not even close. They'll almost always say that, overall, the quality of federal judging is much better."

In Minnesota legal circles, there is already speculation about a push for a constitutional amendment that would, in part, mimic the federal system of judicial appointment. Whether that movement can gain political traction remains an open question.

But if it doesn't, the Joyce Foundation's Hansen has a word of warning. By further opening the process to the public, he says, the judiciary may well become less populist. "I fear you are going to wind up with a court system dominated by the fixed, less nuanced views of interest groups that will throw their weight around to get judges elected."

In other words, when you look at that mysterious judicial ballot in the future, you'll be more likely to know the names--and less likely to trust them.

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