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Maintaining judicial independence

Fri, Nov 16th, 2012
Posted in All Commentary

By Karen Reisner

With the long election process behind us, the onset of election fatigue has long ago afflicted most of us. However, I was reminded, when I turned my ballot over to look at the back while voting, that I was not prepared to vote for judges. When I marked my choices for the various federal, state, local offices, and proposed constitutional amendments, I felt adequately informed. When I looked through the various judge races, I was faced with my ignorance as to which judge candidates would be most qualified in those contested races. Frankly, because of that ignorance, I denied myself the right to vote for any judge as my vote would have been arbitrary and uninformed. In my opinion, judges should be allowed to rise above politics as much as possible. This is made more difficult by making them stand for election.

In Minnesota District Court judges serve a six-year term, and Supreme Court and Court of Appeals judges serve a four-year term. So they are up for reelection every four or six years if they choose to run again. Prior to 2002, a judge or judicial candidate was prohibited from seeking or accepting political endorsements, discussing their views on controversial issues or soliciting campaign funds. After rulings of the US Supreme Court and the Eighth District Court of Appeals, these limitations were taken away as the courts cited First Amendment protections. These rulings have made judicial elections even more political.

I question whether it would not better preserve judicial independence if judges were recommended through a selection process and then appointed by the governor and confirmed by the state senate, similar to the process at the federal level. This too will have political pitfalls, but it may be a better option. Thirty-nine states have a process to select their judges leaving the electorate with the final say. A judge’s job is primarily to interpret the law without the influences of politics or public opinion. They should be as independent of politics as possible. The wishes of the public could conflict with interpretation of the law and the constitution.

Judges need to remain objective and impartial while interpreting the laws that are on the books. Their opinions should not be shaded by the electorate. This is the purpose of the checks and balances imposed by the three branches of government. Our forefathers did not intend for judges to be elected. Legislators write the laws and the judiciary interprets the laws. Lady justice stands blindfolded as she is not to be influenced by outside forces, but make a decision based on the law. Judges should not be biased based on personal opinions on an issue or by social and political pressures.

Judges in Minnesota are elected, but most were first appointed to fill a vacancy. The Minnesota Commission on Judicial Selection solicits judicial candidates, evaluates applicants and recommends nominees to the governor for appointment to fill vacancies. However, the governor is not required to appoint the person recommended by the commission. Maybe it would be best for this commission to make its recommendation, the governor appoint based on the committee’s recommendation, and then elected legislators either confirm or reject an appointment, removing the electorate from the process. The judge, once in office, could then make decisions unencumbered by public opinion or the opinion of special interests. Once a judge stands for election, the special interest money enters the picture. During this last election cycle, we were bombarded with less than truthful advertising fueled with an exorbitant amount of special interest money on a variety of issues and candidates. This political process is more appropriate for executive and legislative offices and referendum questions, but not for the judiciary.

We don’t want our judges to be altering their opinions to conform with special interest supporters. This was not the intent for the judiciary. Appointed judges are more likely to be selected and approved on their judicial merit and qualifications. This would diminish the direct influence of wealthy special interest donors.

Alexander Hamilton argued judges should be insulated from the political process. We don’t want a judge to be swayed when making a decision by his or her chances for reelection. Judges could be compared to a referee, not rooting for one side or the other, but making calls to keep the play fair. Judges should be impartial to the greatest degree possible.

A practice followed in some states does not elect judges, but has them appointed based on merit by a commission. After one term is served, the electorate has the opportunity to vote up or down on the retention of the judge. If the judge is not retained, then another judge will be appointed and that judge will face an up or down vote after the first term. This system would help take special interest group influence out of the equation, as the judge is appointed and there is no election where two or more candidates run for the position. However, a special interest group would be able to campaign to fire a judge if they disagreed with a ruling.

Those who support the election of judges claim it keeps them accountable to the public. This is what we expect of our legislators and our governor. If we don’t like the way they play the game, we vote to fire them. In my opinion the electorate should not be able to fire a judge simply because they disagree with a ruling. The judge’s ruling is ideally based on his or her interpretation of the state’s law and/or constitution. Judges need to have the freedom to make an unpopular ruling when called for without the fear of retribution from the electorate.

Judges protect all of us individually or in groups from the powerful interest groups or the political majority’s agenda at a particular place in time. They are tasked with protecting equal rights for everyone. We don’t want our judges to be purchased and owned. There are currently no statuary limits on contributions made for candidates for judicial office. Many of us may not be aware of a judge’s leanings on interpreting law or the constitution, but you can bet special interest groups are well aware. The best way to maintain judicial independence is to appoint them based on merit and experience and not to allow the electorate to fire them with their vote when a special interest group is outraged with a particular ruling. With recent unleashing of limitations on special interest monies and the growing involvement of special interests in judicial elections, the ability to get a judge elected for a specific purpose is not out of the realm of possibility.

There is a process in place to relieve a judge of his or her duties in Minnesota. The Supreme Court can censor, retire or remove a judge. Judges can be impeached by a majority vote of the house and a two thirds vote of the senate. Under current law judges can be recalled through election.

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