Written by Yappy on Tuesday, 24 January 2012 14:40.
Thanks to Dave Thul for pointing us to Walter Hudson and a discussion of the Great Judicial Debate of 2012. If you haven’t heard of it, welcome to the club, and you’ve just made my point. See those two great pieces and learn what the two sides are. I haven’t chosen a side, but I find Mr. Thul’s logic favoring “MSRE” (merit selection, retention election) for judges uncompelling at best. The alternative of direct contested elections, while flawed, is an improvement over the current situation and does not require a MN constitutional amendment to enact. That seems a reasonable conservative position, though still not perfect in practice.
One could easily point out that most people don't pay enough attention to judicial races to make an intelligent choice, even when the election is contested. But any implication that the "D or R" does not convey sufficient information runs counter to that same argument, since it may be the only piece of information the voter has. Right now the only piece of information the voter has is the "incumbent" label on the ballot, and that ought to be removed. MSRE solves the problem of uninformed voters by simply eliminating the voters from the process.
Our Constitution says we elect judges. The MSRE system has NO judges elected. If it's a bad idea to elect judges, change the Constitution to appoint them, require confirmation and be done, just like the federal courts. Maybe give them a fixed term and require them to be re-appointed. That's just as good as MSRE, and more transparent.
If you don't want parties involved, then recognize that the MSRE system GUARANTEES that partisan politics is involved because of who selects the "next qualified candidate," and because nothing really stops the political parties from campaigning against sitting "nonpartisan" judges. Look at Wisconsin.
That neither major party commands a majority of the electorate is not a reason to eliminate all partisan labels or influence. The "independents," generally speaking, are people who aren't paying attention. I don't want our government selected by them. If they aren't sufficiently informed about a contested judicial election, why would they be more informed about an uncontested retention election? At least a contest forces people to choose sides, one way or another, and competition is a good thing, right?
We hear concern that judges will be partisan activists rather than objective jurists, but what do we have now? "Nonpartisan" does not mean unbiased or even competent. "Good behavior" ought to be defined by the people, by voting either for a judge or for his opponent. Selections by politicians would be MORE likely to be made on the basis of partisan political considerations.
The selection commission that is at the core of MSRE might be fine in a vacuum, but in the real world where the governor is far-left DFL, the legislative minority DFL is given equal weight to the GOP majority, and the current Supreme Court could be considered left-leaning for having fought against election by the voters, the deck is already stacked and could probably never be un-stacked. It would be one thing if the replacement for a judge unseated in a retention election was the "next qualified candidate" but it isn't. It is the candidate selected by the Governor from a list of "qualified" candidates, which is pretty much what happens now, 90% of the time. Except under MSRE it would be 100% of the time.
Finally, I don't like wars, either, but to simply surrender because "you can't win," even if true, is hardly a solution to the problem of aggression by superior force. Maybe we have to fight smarter, but we do have to fight.
It seems like a few small reforms, like removing the word "incumbent" from judicial ballots and requiring that judges not retire just before their term ends, thus setting up a political appointee as the replacement and incumbent, would make our system of electing judges better, without a constitutional amendment making them worse.