Last Friday the SD 45 Republicans hosted a candidate debate between gubernatorial candidates Tom Emmer (R-Delano) and Marty Seifert (R-Marshall) at Armstrong High School in Plymouth, MN. While people may disagree as to which candidate won the debate, almost all agree that the most memorable part of the debate was the moderator - Bill Butler of Libertas Lex. Mr. Butler tried to turn the debate into a spectacle by raising questions about the constitutionality of the Federal Reserve and the basis for the war in Iraq, and even repeatedly berated Mr. Emmer to name a vote he regretted casting when Mr. Emmer had the audacity to claim he stood by his voting record (go figure).
Coverage of Mr. Butler's inappopriate monopolization of the debate is explored quite well by Sarah Janacek here, and needs no further mention. The overlooked story of the debate is that both candidates gave poor (read: WRONG) answers to a question that is of paramount importance to the people of Minnesota. When Mr. Butler's handlers did finally cajole him into to reading the pre-approved questions, he asked:
Do you support current legislation in the Minnesota house that calls for a constitutional amendment pertaining to judicial elections?
Rep. Emmer stated that he was opposed to the legislation because it would make the election of judges less democratic and further that "we cannot have desirable legal outcomes unless we vote for judges." Rep. Seifert answered similarly by first stating his opposition to the bill, and then took it a step further when he expressed his desire to make judicial elections even more democratic than they are currently. He lamented that "the judge I vote for lives over 2 1/2 hours away from me!" Their answers, quite disturbingly, seemed to go over well with the crowd. (By this point however, the crowd was probably just satisfied that they got to hear answers to questions about local matters).
The legislation that the question was referring to is HF 224, currently in the Minnesota house. The legislation calls for the creation of judicial retention elections in the state of Minnesota, in response to some shake-ups by the United States supreme court. To determine whether or not this legislation has any merits, a bit of background is necessary.
The 2005 Republican Party of Minnesota v. White case effectively changed the structure of Minnesota law which had previously placed restrictions on what judges could and could not say while seeking office, including but not limited to ideologies they supported and political views they held. Justice Scalia, writing in the majority in this case, observed “[a] judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. . . . [I]t is virtually impossible to find a judge who does not have preconceptions about the law” (Brennan Center for Justice). Clearly judges have political opinions, and the first amendment affords them the right to express such opinions. This ruling effectively enabled judges to admit support of a political party, and in turn seek a party’s endorsement.
The Citizens United v. Federal Election Commission case helped ease funding restrictions on all federal elections. Overturning portions of the McCain-Feingold legislation, Citizens United enabled corporations to freely spend money on political campaigns. The combination of the White and Citizens United rulings could mean that judicial elections become corporate-sponsored partisan races. And similar to politicians rewarding their donors with lucrative government deals, it is not inconceivable that judges might feel the motivation to rule in favor of their corporate donors. With an adversarial legal system that creates definite winners and losers with every adjudication, clearly the future of judicial impartiality is in jeapordy.
Whereas before, Minnesota judicial elections were anti-democratic in nature, and judges were asked to refrain from making political commentary, the flood-gates are open in Minnesota now to turn judicial elections into partisan races. I must admit that the libertarian in me likes the idea of making judicial elections as democratic as possible. However, it's important to remember that a judge is not a politician. While Justice Scalia is right that as people, judges clearly have political beliefs, the governor's candidates are wrong that they should be elected based upon those beliefs.
I think it's important to turn to the wisdom of our predecessors in this debate. Article 2 of the U.S. Constitution states:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court.
Let's be clear about what this passage states. The president has the power to appoint a judge on the advice and consent of the Senate - a body which was originally elected by state legislatures, and not by popular vote. So the intention of the Constitution was that an unelected body (the Senate) approve the appointment made by an unelected official (the president was and is "elected" by the Electoral College, not the people of the United States) of an unelected official (a Supreme Court Justice). I don't think it would be possible to even imagine a system where the electorate was further removed from the judicial appointment.
This analysis begs the question - why did the founders believe that judges should be appointed, not elected? They knew what common sense should tell everyone, that judicial impartiality is essential to preserve the Rule of Law. We live in a country of laws, not of personalities. In one breath we can herald as patriots those who dumped tea into Boston Harbor in defiance of their British occupiers, and in the other John Adams can describe his defense of those British soldiers who committed the Boston Massacre as "one of the most gallant, generous, manly and disinterested Actions of my whole Life."
It's time that true leadership be demonstrated by Republican candidates on this issue. Minnesota may be a state littered with some pretty idiosyncratic laws, but until the White decision we had arguably the best system for judicial elections this country has ever known. We need to make sure that we place judicial impartiality above partisan bickering. And we need to make sure that judicial elections don't degenerate into the circus they have become in other states.