Since it first became a State, Minnesota's Constitution has declared that voters have the right to elect their judges (1). The Minnesota legislature now is being urged to eliminate contested judicial elections by amending the Minnesota Constitution. Judges would no longer be elected. An unelected “expert” judicial selection commission would submit a list of judicial nominees to the governor. The governor would appoint all judges, but the governor’s choices would be limited only to nominees selected by the commission (2). The only voice left for voters would be a periodic opportunity to vote that an appointed judge should not be retained in office. A replacement judge would then have to be appointed from the commission’s list of nominees.
The Republican Liberty Caucus of Minnesota strongly opposes any and all such proposals.
Problems with the proposals include:
- Voters will no longer have any opportunity whatsoever to directly select the judges who exercise tremendous power over civil and criminal legal matters affecting them. Control over the judiciary will be consolidated in the hands of an unelected commission. Such “expert” commissions are especially vulnerable to being captured by small but highly motivated special interest groups.
- "Expert” commissions do not eliminate political considerations and bias in the judicial selection process. A study by law professor James Lindgren of Northwestern University found that, after accounting for credentials, judicial nominees appointed by President Clinton were 10 times more likely to be given the American Bar Association’s highest ratings than nominees appointed by the elder President Bush (3).
- Judicial decisions, including those overturning laws enacted by elected representatives, could not be subject to review by the general public, except through a specific amendment to the Constitution. Instead of three co-equal branches that are accountable to the citizens of the state at different times, the proposal will shift the balance of power in the state away from voters. Voters no longer will be able to hold the judiciary accountable for its actions.
Therefore, the Republican Liberty Caucus of Minnesota encourages the Minnesota legislature to reject any constitutional amendment that restricts the right of voters to elect their judges. The legislature should instead consider reforms that enable more open and fair judicial elections.
Appendix: An Overview of Minnesota’s Judicial Elections
History of judicial elections
Since the founding of the state, Minnesota's constitution has declared that judges must be elected (1). Vacancies are filled the governor and the judges appointed by the governor must stand for reelection in a subsequent general election. However, impediments to exercising this right been imposed by restricting the campaigns of candidates seeking judicial office.
One restriction previously imposed was the announce clause, which prohibited a judicial candidate from speaking publicly on his or her views on disputed legal or political issues. This “announcement” clause was ruled an unconstitutional restriction of free speech by the US Supreme Court in case the Minnesota Republican party brought forward, Republican Party of Minnesota v White.
After losing the White case, opponents of free and open judicial elections then began to push for the end of contested judicial elections, claiming this was required to ensure courts are impartial and not tainted by political considerations.
The proposals to end contested judicial elections
One prominent group calling for the end of judicial elections called itself the "Citizens Commission for the Preservation of an Impartial Judiciary" and is also referred to as the Quie Commission, after its chairman, former Gov. Al Quie. Members of the Quie Commission differed on details but agreed that contested elections, where more than one candidate may run for a judicial office should be eliminated. The majority report called for establishing so-called "retention" elections where voters can only vote on whether to retain or remove a judge but do not select the replacement judge if the incumbent is removed by the voters (2).
The Melendez minority report, named after commission member Brian Melendez, who later was chairman of the Minnesota DFL party, called for putting the retention decision in the hands of an appointed commission. Both the Quie commission majority and minority report called for the Minnesota constitution to be amended to require the governor to fill judicial vacancies only from a list of nominees prepared by an appointed judicial selection commission.
The current judicial appointment system used to fill judicial vacancies between elections does rely on a judicial screening committee, but the Quie Commission proposal greatly empowers this selection committee. The selection committee can only recommend people for judicial appointment; there is no requirement for the governor to abide by the recommendation of the panel. Moreover, the current commission is established by statute and can be abolished by the legislature. An amendment to the Constitution removes this power from the legislature.
Given the new legislative majorities, in the upcoming legislative session there is widespread expectation that a constitutional amendment establishing retention election will be introduced and voted on by the legislature (4).