Minnesota State Bar Reviewing its Judicial Selection Policy

Following a U.S. Supreme Court decision a decade ago that allowed Minnesota judicial candidates to publicly discuss their views on legal and political issues, the state and its legal community were first confronted with the potential intrusion of politics, special interests, and money into their judiciary. In 2007, the Minnesota State Bar Association (MSBA) adopted an aspirational policy supporting merit selection and judicial performance evaluations. The MSBA is now reviewing the policy and will make recommendations on June 28 about whether or not to retain it.

While some claim that Minnesota has seen no increase in partisan speech or out-of-state money in its judicial elections since Republican Party of Minnesota v. White (2002), there is little reason to expect that Minnesota will continue to be immune to what other states without a comprehensive merit selection process have seen over the last decade. Malia Reddick, Director of the Quality Judges Initiative at IAALS, was recently interviewed about Minnesota's judicial selection system and a proposal to reform that system. According to the state constitution, Minnesota judges are chosen in nonpartisan elections, but more than 90 percent of judges initially reach the bench through vacancy appointments. By statute, the governor seeks input from a judicial nominating commission in filling trial court vacancies, and some governors have used the commission in making appellate court appointments as well. Reddick says that Minnesota's system is good, but could be even better.

It could be strengthened to prevent the possibility that Minnesota could become like other states, where all kinds of money is thrown around, where ideology is a big part of the race. The [MSBA policy] is designed to forestall that from happening.

Proponents of judicial elections claim that the partisan system acknowledges the fact that judges are people, with their own perspectives, views, and biases, and voters should know where they stand. However, such a process can erode public confidence in the courts. Reddick emphasized that openly partisan judges can “lead to infighting over which side will control the ideological balance on the court,” while a system that emphasizes a judge's qualifications, rather than how much money a judge can raise to get elected or their personal positions on hot-button issues, creates a more stable, open, and impartial judiciary.

Additionally, voters will still engage in the democratic process of selecting judges through retention elections following judicial performance evaluations. Each judge's performance is evaluated by a nonpartisan commission, focusing on competence and fairness, and the commission's recommendation will be made public before an election.

The public performance evaluation gives the public the right kind of information: a judge's knowledge of law, whether they treat parties with impartiality, their demeanor on the bench. It's a question of process rather than outcome. In a few states recently, judges have been challenged for rulings. This evaluation wouldn't take outcomes into account.

Such an evaluation is not only valuable for informing the public, but is helpful for judges to get more perspective on how they're doing their job. Whether the MSBA retains its current policy emphasizing these evaluations, and merit selection, remains to be seen, but the insights of this feedback would be beneficial in any judicial selection system.