- Last Updated 12/05/2007 -

 
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MSBA Positions
  • Position adopted by the MSBA Assembly 6-29-07 link
  • Position adopted by the MSBA Assembly 6-17-05 link
  • Position adopted by the MSBA Assembly 12-09-05 recommending the Legislature defer any action on legislation affecting judicial selection or election to allow time for further study. link
  • 2005-06 MSBA President Susan Holden on "Judicial Independence, Judicial Elections and Big Money" link
  • Talking points on keeping politics out of judicial elections link
  • History of MSBA work on judicial elections. link

 

Resolution:
That the MSBA should address
the increasing attacks on the Judiciary

Whereas basic information about the legal framework of our republic and the inter-relationship of its three-branches is being ignored or distorted as part of an attack on the judiciary; and

Whereas these attacks are increasing in severity and threaten the foundations of our system of government; and

Whereas action consistent with MSBA members' oath to defend the Constitution has never been more timely,

NOW THEREFORE, in exercise of its public education function, the MSBA will

1) give priority to communicating that an independent judiciary and independent judicial oversight of legislative and executive actions are key, non-negotiable components of our constitutionally established three-branch federal and state government;

2) join the public discourse in defense of the federal and state judiciary's free exercise of its vital role under the constitution of the United States; and

3) direct its Council, between meetings of the Assembly, to monitor developments, identify legislative or executive branch initiatives to undermine the proper role of the federal and state judiciary, and report these developments to the Assembly, to the MSBA membership, and to the public

—Adopted by the MSBA Assembly
6-17-05

Judicial Independence, Judicial Elections and Big Money

[Excerpted from StarTribune commentary by 2005-06 MSBA President Susan M. Holden, 8-8-05]

In summer 2005, a federal appeals court decision last week gave us something that may be legal, but is a really bad idea for a lot of reasons

The U.S. 8 th Circuit Court of Appeals didn't say it would be good for judicial candidates to go around asking for campaign contributions and political endorsements, just that they have the same First Amendment rights as every other American—to freely associate and say whatever they darn well please. The State Board of Judicial Standards, the main party on the losing side of the decision hasn't said whether it plans to take the case to the U.S. Supreme Court. Regardless of what happens in court, I hope that Minnesota judicial candidates will look at the decision, thank the court for acknowledging their constitutional rights and campaign with the kind of restraint that will demonstrate their judicial demeanor.

The Minnesota State Bar Association has been involved in the case, Republican Party v. White, since its beginning in 1998 because the state's largest lawyer organization believed—and continues to believe—that money and politics and an independent judiciary don't mix. Minnesota has been very fortunate to have an excellent system for selecting judges, a talented pool of lawyers to draw from, and an enlightened public that understands the need for qualified, independent judges. So far, that is.

Every election cycle the Minnesota bar looks beyond its borders—notably east to Ohio and Pennsylvania and south to Texas and Louisiana—and thanks our lucky stars that that's not us. A national study released in June forecast "a perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special interest politics … descending on a rapidly growing number of Supreme Court campaigns."

A Justice at Stake Campaign study summed up the problem: “After the 2000 elections, we sounded the alarm: no state that elects its judges is safe from the corrosive effects of big money, nasty TV ads, and special interest arm-twisting,” said Bert Brandenburg, executive director. “If 2000 was a turning point, then 2004 was the tipping point, when the threat spread across the country. The fairness and impartiality of the courts that protect our rights is in jeopardy.” Among the findings: "$24.4 million was spent on TV ads in state high court races, obliterating the previous record of $10.6 million set in 2000." Of the $46.8 million raised by state supreme court candidates, Minnesota accounts for a whopping $120,000. In Illinois—a state with partisan judicial elections—supreme court candidates raised nearly $10 million. The U.S. Supreme Court recognizes the potentially adverse impact on elections, particularly big-money campaigns. As Justice Sandra Day O'Connor put it: "the very practice of electing judges undermines [an] interest" in an actual and perceived impartial judiciary. Last week's decision doesn't change the MSBA's long-held belief that judicial candidates should be evaluated solely on the qualities that make a fair and competent judge—integrity, professional competence and judicial temperament. While the court's decision does recognize the importance of independent and unbiased judges, the two main factors that this decision deals with—money and political connections—won't produce a better system for electing judges. Judges occupy a unique position that requires independence from politics and popular opinion.
The MSBA will continue to encourage judicial candidates to show voters their judicial qualifications, not their political colors. We'll continue to encourage voters to look beyond single issues to the bigger picture of never having to wonder if the judge assigned to your case comes to the bench with an opinion that was paid for on election day.

Talking points on keeping politics out of judicial elections

The MSBA's long-held belief is thatjudicial candidates should be evaluated solely on the qualities that make a good judge.

We recognize that judicial candidates enjoy the same right to free speech as any other political candidate, but judges occupy a unique position that requires independence from politics and popular opinion.

The MSBA urges judicial candidates to rise above the fray because we have seen the damage caused by money and politics to the judiciary in other states. It is important that all citizens work to make sure our judges are elected based on the quality of their character, not by the political connections or by their ability to raise money.

The best way to ensure an independent judiciary is to support efforts for the appointment and elections of judges based on the following criteria:

  • Integrity and Independence. A candidate for the office of judge should be of high moral character and enjoy a general reputation in the community for ethical conduct, honesty and independence from influences that would undermine public confidence in the judiciary.
  • Professional Competence.The candidate should exhibit professional competence, as reflected in his or her analytical ability, professional and personal judgment, writing and speaking ability, knowledge of the law, breadth of professional experience, including courtroom experience, and administrative ability.
  • Judicial Temperament.The candidate should possess an appropriate judicial temperament, including maturity, courtesy and civility, compassion, decisiveness, collegiality, devotion to public service, commitment to equal justice under the law, and the courage to uphold the independence of the judiciary in the face of political pressure.
  • General Characteristics. The candidate should have other characteristics that would assist him or her to fulfill the duties of judicial office, including self-motivation, industry, diligence, capacity for work, mental and physical health as they would affect the candidate's ability to perform the duties of the position, and an ability to work under pressure.