This is the first of two posts on judicial elections. Tomorrow, I will post some thoughts on common questions I hear from other conservatives. [UPDATE: Part 2 is here.]
As we approach election day, we have been inundated by media coverage about the Presidental and Congressional races, our state legislative elections, and the two proposed constitutional amendments. But when you get in the voting booth, don’t forget to flip your ballot over and vote on judicial races on the back. Nearly half of the seats on the Minnesota Supreme Court -- three of seven -- are up for election this year. Please educate yourself (the Republican Party of Minnesota put out a good voter guide) and vote in these races.
Each of the three incumbent justices -- Chief Justice Lorie Skjerven Gildea, Justice Barry Anderson, and Justice David Stras -- were appointed by Governor Tim Pawlenty. I plan to vote for all three. Here's why.
First, a word on how to evaluate judicial candidates. Judges are vital to maintaining our system of the rule of law. They are not legislators, and should not be evaluated like legislators or other politicians. So I don’t expect a judge to articulate a long platform of policy positions that I agree with. Instead, our system of the rule of law is best promoted if we have impartial judges who understand that the limited role of the courts is to apply the law as it is enacted by the people through their elected representatives. So you should look for judicial candidates who are committed to a restrained, impartial role for judges, not candidates who run on a list of policy prescriptions that should be enacted through legislation or constitutional amendment.
But in addition to a sound judicial philosophy, judicial candidates need to be qualified for the job. It has often been said that the courts do not have the power of the purse or of the sword. Instead, the courts derive their power from their credibility. So it is not enough for a judge to vote the right way. A good judge must be capable of properly analyzing a difficult legal issue and persuading others of the right result.
On both counts -- a philosophy of judicial restraint and the demonstrated qualifications and ability to do the job -- I believe the three incumbents are superior and worthy of support.
Chief Justice Gildea, after graduating from the University of Minnesota-Morris and Georgetown’s law school, worked for several years in private practice, at the University of Minnesota, and the Hennepin County Attorney’s office before being appointed first to the district court in Hennepin County and then to the Minnesota Supreme Court by Gov. Pawlenty. She is well-regarded as a thoughtful and intelligent judge, and she has demonstrated a commitment to judicial restraint.
For example, in the Brayton v. Pawlenty case regarding a challenge to Tim Pawlenty’s decision to balance the budget through unallotment, then-Justice Gildea wrote a dissenting opinion (joined by Justice Barry Anderson), arguing that “The judiciary's ‘duty’ is simply ‘to apply the law as written by the legislature’” and “I would not rewrite the statute; I would apply the language as written.”
More recently, Chief Justice Gildea, Justice Anderson, and Justice Stras all joined majority on the court upholding the legislature’s authority -- clearly stated in the text of the Minnesota Constitution -- to propose constitutional amendments, drawing praise from National Review Online.
Chief Justice Gildea’s opponent -- Dan Griffith -- is a lawyer from International Falls who has run several times for judicial seats, and in the past he has been endorsed by the Republican Party and Constitution Party. But he does not have the demonstrated legal qualifications of Chief Justice Gildea, and his campaign message is unfortunately not one of judicial restraint. Instead, his primary campaign issue seems to be opposition to a proposal to amend Minnesota’s constitution to change our election system to a system of retention elections. Although many in the legal community support this proposal, it has so far struggled to gain momentum at the Capitol, and it is not on the ballot this year.
But more importantly, advocating for or against a constitutional amendment is not the job of a judge, and deciding whether or not to amend the constitution is not within the power of the courts. Instead, any amendments to the Minnesota Constitution must be “proposed” by the legislature and then voted on by the people. And any such amendments must then be fairly applied by the courts, regardless of their personal views.
Associate Justice Seat 1
Justice Barry Anderson (one of two Andersons on the court) graduated from Gustavus Adolphus College and the University of Minnesota Law School, was in private practice and served as the city attorney in Hutchinson for several years prior to being appointed to the Minnesota Court of Appeals in 1998 by Gov. Carlson. He was appointed to the Minnesota Supreme Court in 2004 by Gov. Pawlenty, and was elected in 2006. He joined Chief Justice Gildea’s dissent in the unallotment case discussed above, and the majority opinions in the two constitutional amendment cases earlier this year. He is a highly-qualified judge with track record of judicial restraint.
The same cannot be said of his opponent: Dean Barkley. Aside from a long history of activism within the Reform Party and Independence Party, which resulted in a short appointment as a U.S. Senator by Gov. Jesse Ventura, Barkley does not have any meaningful qualifications to serve on the Minnesota Supreme Court. His legal career has been checkered, to put it kindly.
Even more troubling, Barkley’s campaign seems to be based on attracting voters based on his (generally left-of-center) policy views and an expansive view of the court’s role. On his Twitter feed, he has written regarding the two amendments on the ballot: “No matter what happens this fall, the Supreme Court will have final say on both issues.” And regarding the marriage amendment, he wrote, “What part do [people] not understand? Equal protection of rights means equal protection of ALL rights to ALL people.” He “re-tweeted” a comment from one of his campaign workers encouraging “all of you who want Marriage equality” to vote for him for the Supreme Court. And he took issue with the majority opinion (joined by Justice Barry Anderson) holding that Mark Ritchie did not have the authority to change the ballot titles of the constitutional amendments set by the legislature, saying that the dissenting opinions were “logical and convincing.”
Whether you support or oppose these amendments as a matter of policy, these words from a candidate for Minnesota Supreme Court should give you pause. They suggest to me that he plans to issue rulings based on his own policy views, not based on the law before him.
Associate Justice Seat 4
Justice David Stras is from Kansas, and received a undergraduate degree, an M.B.A., and a law degree from the University of Kansas. He then served as a law clerk to two federal appeals court judges (an extremely high honor) before clerking for Justice Clarence Thomas of the United States Supreme Court (an even higher honor). He taught for several years at the University of Minnesota law school while doing scholarly research and practicing appellate law before he was appointed by Gov. Pawlenty to the Minnesota Supreme Court in 2010.
(A personal disclosure: Justice Stras was one of my law school professors, and I consider him a friend. A year after I graduated, he and his wife traveled to Sioux Falls to attend my wedding, and I am a member of his campaign committee. This post expresses only my personal opinions, and not the views of the campaign or any other organization I am involved or affiliated with.)
Justice Stras is one of the youngest Minnesota Supreme Court justices ever, appointed at the age of 36. But he was extraordinarily prepared for the job, and in his short time on the court, he has distinguished himself as a thoughtful and restrained judge. I expect he will be an intellectual force for judicial restraint for years to come, as Carrie Severino recently wrote on National Review Online.
Justice Stras’s opponent, Tim Tingelstad, serves as an child-support magistrate in the Ninth Judicial District, appointed by the trial court judges to assist them on child-support cases. Like Dan Griffith, he has also run several times in the past for judicial seats, and also is making his support of contested judicial elections and opposition to retention elections a centerpiece of his campaign.
Based on their qualifications and based on their demonstrated commitment to fairness and judicial restraint, I believe all three incumbent Minnesota Supreme Court justices should be elected to remain on the court.
Tomorrow: Common questions from other conservatives and Republicans. [UPDATE: Part 2 is here.]