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Thursday, March 23, 2006

Elected vs Appointed Judiciary

David Schultz has an excellent oped in the Pioneer Press discussing the issues raised with the Dean Johnson flap.

Judicial selection and independence are not usually conversation starters in Minnesota. Yet Sen. Dean Johnson's claim that Minnesota Supreme Court justices assured him they would not overturn the state's law baring same-sex marriages is only the latest event that is increasingly placing the state courts in the eye of a political storm that could threaten their independence and impartiality.

The result? This year could be the one where the courts themselves are a political issue, and the way we select judges could give us Texas-style campaigns that are high profile, nasty and expensive.

Minnesota's courts have been less visible than the legislative or executive branches, but the judiciary is a powerful branch in the state government. In the last few years the courts have used the state constitution to recognize a right of women to terminate a pregnancy, strike down a conceal and carry gun law, and resolve a budget impasse at the Capitol.

Different perceptions. Some laud these decisions, seeing the courts as using their authority to protect rights. Other view these actions as no more than legislating from the bench. For the latter, the solution to judicial activism is to challenge incumbent judges in elections. But to do this, the rules governing judicial elections needed to change. These rules prohibited judicial candidates from announcing their views about issues such as abortion or from affiliating with political parties, or personally soliciting political contributions. These rules were in place to protect judicial independence and impartiality.

Yet in two court decisions by the same name — Republican Party of Minnesota v. White — the U.S. Supreme Court and a federal appeals court declared most of these rules unconstitutional. These decisions set the stage this year for the type of elections more common in Texas, Illinois and Ohio, where campaigns often cost millions of dollars and candidates and interest groups push nasty attack ads no different from those found in other political races. Coming soon to Minnesota we may hear political commercials stating: "A vote for my opponent puts a baby killer on the court" or "Vote for me and I will be tough on corporations."

But these two court decisions are not alone in challenging judicial independence and impartiality. For example, consider a current Minnesota Citizens Concerned for Life-sponsored bill, H.F.3258, that is sailing under the radar through the Minnesota House of Representatives. Among other provisions, one would require individual judges to disclose publicly a host of statistics regarding the number of minors whom they permit to terminate a pregnancy without notifying their parents. This disclosure serves no other purpose than creating a scorecard on which individual judges may be evaluated in the next election. Think about how this scorecard might compromise judicial independence.

I had not heard about this bill. We've been hearing so much about gay marriage that we aren't hearing enough about nonsense like this. This type of bill is the type of bill that passes under the radar. I urge people to contact their legislators and tell them to oppose HF 3258. In Hennepin County, MCCL's support backfired on their endorsed candidate. That support became known beyond the MCCL supporters - and people figured the MCCL supported judge was going to be legislating MCCL's agenda from the bench - and voted him down.

Schultz continues:

And then there are Dean Johnson's comments. If, contrary to the chief justice's denial, any justices gave assurances they would not overturn the state marriage law, then shame on them for breaching their neutrality. But shame on Johnson for trying to defuse the same-sex marriage constitutional amendment by fibbing about what the court would do. In giving this assurance he brought into question the court's impartiality while making supporters' case for the amendment stronger than it was before.

Well stated. I recommend that folks read the whole thing.