Posted: Tuesday, February 5, 2008

Says politicized, expensive elections threaten public confidence in the fairness of the courts.

[Chief Justice Anderson made a rare appearance in front of a joint Legislative committee February 4 to offer his views on calls for changing the way Minnesota judges are selected and retained. His testimony to the Senate Judiciary, Judiciary Budget Division, and State and Local Government Operations and Oversight committees follows.]

Chairs Foley, Moua, and Rest, and committee members.  For the record, my name is Russell Anderson, Chief Justice of the Minnesota Supreme Court.

I speak today on this important issue from my perspective as a former practicing lawyer, county attorney, district court judge for 16 years, associate justice, and now as the Chief Justice.

It is from these many perspectives that I have come to the conclusion that ACTION is required NOW to maintain fair courts for the future.

MINNESOTA’S HIGH-QUALITY JUDICIARY

How we select judges is at the heart of the issue we discuss today.  The justice our citizens obtain is directly related to the quality of our judges, and the system in which they operate.

Right now, the quality of the Minnesota judiciary is very high.

A 2006 survey showed that more than 80 percent of Minnesotans believed our judges to be qualified, fair, dedicated to the law and the facts, honest, and impartial.

A 2007 survey by the U.S. Chamber of Commerce ranked our courts among the top three state judiciaries for impartiality, competence, and fairness.

These results are no accident.  They are the conscious product of women and men throughout the court system who strive every day to deliver justice for our citizens, and it is with great pride that I report these findings to you.  Minnesota’s reputation is also the result of a merit selection process—initiated by Governor Quie—and non-partisan elections that have—until now—brought highly qualified, hard-working people of judicious demeanor to the bench.

But the landscape for Minnesota’s courts has changed dramatically, in significant part because the U.S. Supreme Court’s White decision has opened the door to partisanship and high cost, highly contested campaigning.

THE PROBLEM

I have spent the past two years studying this issue.  I have attended national conferences and listened to experts and to judges from states where judicial selection is dominated by partisanship and campaign fundraising.  I have spoken to many of my fellow chief justices, who are likewise charged with overseeing the administration of the judicial system in their states.

I’ve heard stories of bitter, negative elections that have diminished public respect for the bench, and have produced appellate benches rife with infighting and public disputes.

As David Rottman has testified, the amount of money pouring into judicial races around the country is simply astonishing.

Business Week put it this way:  “Increasingly (special interest groups) have come to view the judiciary as something to be gained and captured–just like Congress or the State House.”

I’ll be more blunt:  The intent of many special interests is to buy the robe.

The practical impact of this is nothing less than the loss of the one thing we cannot afford to lose:  the public’s trust and confidence in the fairness of our courts.

Another consequence of high cost, partisan, and negative judicial campaigns is that they will discourage many highly qualified lawyers, who would make excellent judges, from seeking judicial positions.  We know this from other states.

Our job in the courts is not to advocate for particular causes or to represent constituents, but to deal with disputes by applying the law to the facts of individual cases.  The thing that matters to you most when YOUR case comes to court is whether YOU will be treated fairly.

I would argue that the corrosive impact of expensive, contentious judicial elections is already chipping away at this important principle.  A study last year by the Annenberg Public Policy Center showed that nearly 8 out of 10 Americans believe that pressure from campaign contributors affects judges’ ability to be fair and impartial when deciding a case.

And a poll of Minnesotans released just last week showed a similar result right here.  Seventy-five percent of Minnesotans surveyed believe campaign fundraising by judges represents a threat to the fairness and impartiality of the judiciary.

And it is not just the public who is concerned.  A Carnegie Foundation study of judges found that nearly half of the judges surveyed believed that campaign contributions had some influence on judicial decisions.

Let me repeat that.  Judges themselves believe that campaign contributions influence judicial decisions.

WHY REFORM IS NEEDED NOW

Since becoming Chief Justice, I have spoken out frequently about the challenges the courts face in this new era.

But until today, I have not made a recommendation as to what I believe is the best approach for dealing with these challenges.

Let me begin by saying that in my view there is no perfect solution to the problem we face.  But I also believe certain approaches will do a better job of balancing the need for judicial independence necessary to fulfill our constitutional mission with appropriate accountability to the citizens of our state.

My colleagues in the District Judges Association and the Minnesota State Bar Association share my concern for maintaining impartiality, although there are different ideas about the form a solution should take.

So let me do the best I can to articulate why, after careful study, I support an approach that includes merit selection with gubernatorial appointment and retention elections with public judicial performance evaluations.

I believe these recommendations strike the right balance.  They provide accountability to the residents of this state, while preserving the judicial independence necessary to fulfill our constitutional mission.

I’ll begin with merit selection.  Since 1979, Minnesota has used a commission composed of lawyers and non-lawyers to screen applicants for district court judicial openings and to recommend candidates for gubernatorial appointment.  Four governors from three different parties have honored that process, and the result has been a trial court bench that is respected by the people of Minnesota, and that has an international reputation for judicial knowledge, skill, innovation, integrity, and fairness.

This merit selection process has served us extraordinarily well and I believe we should not only preserve it, but expand its application to appellate as well as the district court judgeships.

The second component of the system I am recommending today involves changing the type of election we use for judges.  Retention elections—where voters choose whether or not to retain a sitting judge—have the benefit of preserving the public’s right to “fire” a judge for what they view as poor performance, while eliminating the opportunity for well-financed interests or individuals to buy a seat on the bench.

There are those who promote other options:

Some argue for a purely appointive system that leaves voters out of the process entirely.  Others suggest we simply stay with our current contested election system, but I believe that retention elections are a sensible mid-point between the two, giving voters a voice, but ensuring that even if a sitting judge is removed by the voters, the replacement will have been vetted through a merit selection process.

This point is key; merit selection ensures that everyone appointed to the bench has the legal knowledge, judicial temperament, and ethics the public expects in a judge.  And, it builds on the highly respected approach that we now use.

I’ve heard arguments that retention elections won’t remove the corrosive impact of fundraising because judges would feel compelled to stock campaign coffers against the possibility their retention will draw opposition.  But that simply is not the overwhelming experience of the states that have retention elections.

For example, with the exception of $1,000 raised for a justice in New Mexico, none of the 34 justices up for a retention election nationwide in 2006 raised any money.

Adopting retention elections will also give us the opportunity to address one of the shortcomings of our current selection process:  voter complaints of insufficient information about the candidates.  Adopting judicial performance evaluations that are publicly accessible would provide vital information to voters, improve judges’ accountability to citizens, and bolster trust in the institution. 

In a study of four states that utilize judicial evaluations, judges viewed these evaluations quite favorably.  Most judges believe the performance evaluations are fair, accurately reflect performance, provide information that helps improve judicial performance, and help judges respond to attacks.

I’ve heard people say that Minnesota is quite different, and that we are in little danger of mutating into a state like Ohio, West Virginia, Illinois, or Texas.

But that’s what Wisconsin residents thought, until that state endured what has been called the “nastiest and bleakest” judicial race in state history in 2007, where nearly $6 million was spent on one judicial election.

That’s also what residents of Washington State thought—a state whose judicial election system looked much like Minnesota’s until the early 1990’s, and has now been flooded with $5 million in campaign spending and highly contested races.

I have no doubt that the expensive, partisan, and frequently negative races we see across the country will soon migrate here.

But perhaps the most instructive lesson we can learn from these other states is that once special interests gain a foothold in judicial elections, the hopes for reform are bleak at best.

Once the political machinery of a state adapts to costly and contentious judicial elections, it becomes all but impossible to turn back the clock.  The culture changes, the entities become entrenched, and the dialogue becomes poisoned.

So to those who believe that reform is not necessary now, I respond that the timing is perfect—but fleeting.

Minnesota has a lot to lose.  Let it not be said that it was lost on our watch.  

Thank you.