How should we select our judges?

Which would you rather have: a corrupt, incompetent governor appoints his lackey, corrupt friends to be judges across the state to decide the most serious cases or a small, well-funded group that raises enough money to swing judicial elections to ensure candidates that will always agree with their extreme positions are elected?

Recently in Minnesota, there’s been controversy about how we select our state court judges. Presently, as directed by our constitution, we elect them just like we elect our mayors and state legislators. (Federal judges are appointed by the president for life-time terms.) Our judges serve six years when they must stand for election again.

For several years, a commission has explored alternatives. They are proposing a “retention” vote rather than a traditional election. That means at the end of a judge’s term, he must run again, but the ballot would only contain two choices–to retain that judge or not. As I understand the recommendation of the commission, there wouldn’t be a challenger on the ballot.

Why are they recommending this?

In some judicial elections around the country, small well-funded “issue” groups run particular candidates and, because of the money they can raise, essentially “buy” the elections. In Minnesota, judges are prohibited from expressing how they would rule on any subject…which leaves most candidates to run on their record, experience, or promises to be a great judge. The commission fears if elections remain as they have, small groups of wealthy promoters could stack the bench in favor of judges who will decide issues in their favor.

What’s really going on?

Presently, the vast majority of judges begin their terms by appointment from the governor. It’s difficult to run as a candidate because it’s a county-wide race and they are limited in the topics they can talk about, as I’ve mentioned. Therefore, few people start as elected judges. After the governor appoints them, they sit for their term then must run for re-election. In reality, they seldom have challengers.

How does the governor choose? Wouldn’t he just pick his political friends or financial supporters?

For decades in Minnesota there has been a judicial selection committee made up of several people from around the state including non-lawyers. They review applicants, interview them individually, and pass on recommendations for selection to the governor. With the exception of one governor, all the others have used this committee and respected their recommendations for years. Thankfully, Minnesota enjoys a high level of judicial competence and honesty.

Still, if it’s an elected position and 95% of them start without being elected, is this wrong?

My own opinion is the present system works pretty well. In Hennepin County, the largest in the state, we have a good cross-section of the population represented on the bench–in diversity, gender, and age. It’s been my experience that the truly bad judges draw challengers and often lose in the following elections. Every year the county bar association publishes a survey of all the sitting judges, compiled by the lawyers who practice before each judge. It’s a pretty accurate report and provides the citizens with direction when voting. It seems to work well.

What’s your opinion?