The Importance of an Independent Judiciary Laura R. Hammargren July 15, 2008 The importance of having an impartial referee at a basketball game is easy to grasp: It keeps the game controlled, it ensures an objective eye is making the controversial calls and it allows fans to believe the outcome is fair. Former U.S. Supreme Court Justice Sandra Day O’Connor recently drew on this analogy to highlight the importance of an independent judiciary. “Judicial independence does not happen all by itself,” she said. “It is hard to create, and it is easier than most people imagine to damage or destroy.” O’Connor spoke May 2 in an event sponsored by the League of Women Voters and the nonprofit Minnesotans for Impartial Courts. Her talk focused on judicial elections and her recommendations for states trying to set up new frameworks to select judges. The speech came at the pivotal juncture of recent controversial contested judicial elections in other states and a looming November election. Although this issue was not addressed in the last Minnesota legislative session, the increasingly politicized nature of judicial elections in many states has ramped up speculation on how soon and in what direction the Minnesota Legislature will move. O’Connor’s speech was followed by a panel of key stakeholders in the debate about judicial election reform. Although the panelists did not agree on what exactly the future of judicial selection should be, they did agree that, as O’Connor’s use of the basketball analogy showed, this is an issue that needs to reach the entirety of the legal profession and general public more broadly, and more quickly. “The amount spent in campaigning for judicial offices has doubled over the preceding four election cycles,” said panelist Justice G. Barry Anderson of the Minnesota Supreme Court. “There’s some very impressive data out there about what has been occurring, and I think that the time to deal with this is now.” Minnesota is at the Center of the Debate Minnesota has been at the center of this debate since the 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White. The Minnesota Constitution provides that judges “shall be elected by the voters,” but there existed a code of judicial ethics that limited candidates seeking judicial office from stating their views on “disputed legal and political issues.” In White, the Supreme Court ruled by a 5-4 margin that this restriction violated the First Amendment and was unconstitutional. O’Connor, who voted with the majority, also wrote a concurring opinion that foreshadowed her vigorous opposition to contested judicial elections. “Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on that awareness, the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so,” O’Connor said in her opinion. However, O’Connor’s concurrence implied that the best way to avoid this problem is to change a state’s selection framework to judicial appointment or retention elections, not by limiting the permissible speech of judicial candidates in a popular election. Following the reasoning in the White decision, the 8th Circuit Court of Appeals struck down similar Minnesota judicial canons. Minnesota judicial candidates now are allowed to state their views on legal issues, announce party affiliations, and seek and accept political party endorsements and campaign contributions. Groups and committees concerned with this issue started to form right away; one of the most influential is the Citizens Commission for the Preservation of an Impartial Judiciary, also known as the Quie Commission. The commission’s task was to review the impact on impartiality in Minnesota’s court system after White and make recommendations on the method of choosing Minnesota’s state judges. It released its final report and recommendations in March 2007. Thomas Mengler, dean of the University of St. Thomas School of Law, was a member of the Quie Commission and thus has been significantly involved in thinking through the future implications of these past decisions. “Because of White and the subsequent decision by the 8th Circuit, in the election context things are wide open in terms of fundraising, how candidates can speak, and what they can speak about,” Mengler said. “If we do nothing, it is highly likely that the highly partisan, very expensive, and ugly politicking that has been seen in Wisconsin, Texas and Ohio will arrive in Minnesota.”Concerns with Elections O’Connor’s speech and the panel discussion that followed highlighted the largest potential problems that can arise from contested judicial elections – problems that have been widely discussed and have come to fruition in some states – over the last few election cycles. One concern is the appearance, and perhaps the reality, of improper outside influences on judges. O’Connor noted involvement of interest groups trying to influence the outcome of elections has a much different impact on a judicial rather than a legislative election, because judges should be selected on their ability to apply the law objectively. “For as long as we have had elected officials in this country, we have had interest groups who try to influence the outcome of elections. That’s part of the process. It goes hand in hand with democracy and elections,” O’Connor said. “But judges are not ordinary politicians. Their job is not to interpret the will of the people.” Closely connected to the problem of outside influence is the high cost of judicial elections: It not only seemingly compromises the judge’s impartiality, but it also forces people to spend a lot of money that could go to different uses. More than $155 million was spent in the past year on contested judicial elections in this country, according to Minnesotans for Impartial Courts. In Illinois, $9 million was spent; $14 million was spent in Alabama. And in Wisconsin, last year’s state Supreme Court election became the state’s most expensive at almost $6 million. All of this money and contention not only deplete funding sources, but the citizens’ belief in their judiciary. O’Connor said that studies have shown “people in states with hotly contested judicial elections are more cynical about the judicial system, and less likely to believe that judges are fair and impartial.” Another concern is negative campaigning and attack ads. Larry Jacobs, director of the Humphrey Institute Center for the Study of Politics and Governance and moderator of the panel discussion, played two television ads that aired in Wisconsin during its hotly contested Supreme Court election. Jacobs noted that both ads mischaracterized the legal and judicial careers of the candidates. “This kind of scrutiny makes it much less desirable for people of integrity to want to run for the judiciary,” Mengler said. “A climate like that will make it less likely to attract the best and the brightest, and then we all lose.” The last problem is both impacted by and exacerbates these problems. Dee Hall, a Wisconsin journalist who has covered judicial elections, talked during the panel discussion about how hard it is for the media to distribute objective information. Not only are people uninterested, but they also do not feel qualified to assemble the information and make a decision regarding judicial candidates. Anderson highlighted the main difference that voters face when voting for a judge. “I don’t think the voters are going to go to the polls in November and complain that they don’t have enough information about whether to vote for the Democratic candidate or the Republican candidate for the United States Senate. I just don’t think that’s going to be an issue. But when you talk about judicial races, it’s a very different thing.”A Possible Solution A retention-election system was the final recommendation of a majority of the Quie Commission, and has been supported by various groups and individuals, including the Minnesota State Bar Association. Retention-election bills, the first step toward putting the issue on a ballot for Minnesota voters to decide, went to two legislative committees in the past session, but neither was acted upon. In a retention-election model, the initial selection of judges is considered to be a merit-based process. The process starts with a nonpartisan panel that recommends to the governor qualified candidates for the position. The governor then must appoint one of the candidates. Once a judge has been appointed, a periodic, comprehensive performance evaluation is taken. This serves two purposes: To provide judges with helpful feedback and to give voters enough information for when that judge is subject to occasional uncontested retention elections. Justice O’Connor expressed her support of the retention-election system, citing her home state of Arizona as an example to follow. “The voters can, at the end of the day, hold every judge accountable for decent performance of their duties as a judge.” This system is not without its potential flaws and is not without opposition. During the panel discussion following the speech, Hennepin County District Court Judge Charles Porter cautioned against moving too quickly and not exploring all the available options. “I don’t think we should lose sight of the fact that we’ve had three election cycles since White won, and we haven’t had the problem arise yet. “ Potential problems with the retention election system include the possibility that special-interest groups still will fund campaigns and attack ads for the purpose of unseating judges during retention elections. These outside attacks also could look much more like ambushes; current election rules require an opponent to file by July, thus putting a judge on notice that he or she could be the subject of a controversial election. Porter also noted that judges will still have to raise a lot of money for retention elections. “Instead of two or three or four judges statewide having legitimate contested elections, about 40 percent of the judges will have a retention election every two years, given the rotation of judges,” he said. “And every one of them will have to raise money in anticipation of a last-minute challenge, either from a special-interest group, a political party or some other interested individual.” Jacobs closed the panel by acknowledging that the retention-election system is not without its possible flaws, but at this point the system is a better option than waiting for the potential pitfalls of contested elections to hit home. “When Judge Porter talks about it not being a perfect solution, he’s right about that,” Jacobs said. “It’s just the best we’ve seen come along.”A Call for Action O’Connor, expressing her high regard for Minnesota’s judiciary, challenged the state to become a model regarding this issue. People involved in the debate believe that the only way this can happen is if the legal profession increases its outreach to the broader voting community to tell it what is at stake if judicial elections become too partisan. “What lawyers should be doing now is making non-lawyers aware of the issue and its implications,” Mengler said. “If it comes to a constitutional amendment, it will be the voters making the ultimate decision, not the lawyers.” O’Connor said that independent judiciary must be a priority to every citizen, as it is the best way to keep the rule of law grounded in our current politicized culture. “It would be folly to squander this priceless constitutional gift to placate the clamors of political partisans,” she said. Author: Laura R. Hammargren is a 2008 graduate of the University of St. Thomas School of Law, where she was editor-in-chief of the Law Journal. She is a law clerk for Minnesota Supreme Court Justice Helen Meyer. Read more from St. Thomas Lawyer. 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