Blogger Walter Hudson
provides some helpful background information for the debate about how judges ought to be selected in Minnesota:
Judges in Minnesota are currently subject to contested elections with one or more names on a ballot. However, in practice, few judges ever face a challenger, and fewer still have lost to one. A number of explanations have been offered as to why judges have not been effectively challenged. There were some odd rules about campaigning and fundraising which were, in recent years, struck down by the U.S. Supreme Court. What has emerged since is a debate between those who seek additional measures to strengthen contested elections and those who seek to amend the state constitution so that judges would instead face a retention election.
The options in a retention election are "yes" and "no." You vote to either retain the judge or not. Under MSRE [merit selection retention elections], judges who lost a retention election would be replaced by a gubernatorial appointee selected from a list provided by a merit selection commission.
Got all that? Let's make it a little harder for you. Under MSRE, in addition to the Merit Selection Commission (which already exists in order to facilitate appointments when judges retire early or otherwise vacate the bench between elections), there would also be a newly formed Judicial Performance Evaluation Commission whose job would be to advise voters on whether or not to retain judges under the new election system. The performance commission would look at factors like punctuality, timely decision making, and respectful treatment of litigants -- not how judges ruled on particular cases -- and grade incumbents as well qualified, qualified, or not qualified.
This is pretty wonky stuff. It's nonetheless important when you consider how much power the judicial branch holds. Judges need to be held accountable. The question these proposals attempt to answer is how best to do so. Do we leave the "performance evaluation" and "merit selection" to the voters? Or do we create commissions to do the job for us?
Why are judicial retention elections a bad idea? Hudson continues:
The effect of MSRE would be to insulate the judiciary from political consequences. "Every one of these processes is political ..." Franklin said of proposals for reform on The Late Debate. "[Our goal is] to make sure that hot button issues don't dominate the bench." Of course, what makes an issue a hot button is the fact that voters care about it. So the translated goal is to make sure voters don't dominate the bench.
It's important to clarify that we are talking about "the bench" in the collective sense, not a particular judge, but the judiciary as an institution. Understanding that distinction is critical. MSRE advocates stress that retention elections "empower the voter" to oust sitting judges. This is true. However, retention elections bar voters from ever directly determining who will sit on the bench. So while a particular judge might be voted out for one reason or another, his or her replacement will not be vetted by the same voters. This allows the judiciary as a whole to withstand the wrath of the electorate, letting particular judges take it on the chin while enabling a political clone to replace them.
The euphemism for this political insulation is "impartiality and stability." Whenever you hear someone talk about impartiality, your next question should be "by whose standard?" The choices presently offered are the standard of the voters and the standard of a 24-person commission appointed by a given political establishment. If you're going to assert that the voters as a whole aren't qualified to determine a judge's impartiality, it seems strange to turn around and argue that 24 appointees somehow are. We're not dealing with separate species here, voter sapien and voter superior.
As for stability, well, dictatorship is pretty stable. Justice seems a higher consideration. ...
Contested elections result in an elected judiciary. Retention elections do not.
Read the rest.
