October 2000 

Judicial Elections

by Kent A. Gernander

William Mitchell arrived in Winona in 1857, shortly after the Minnesota Territory was organized. Born in Ontario to Scottish immigrants, he attended college in Pennsylvania and taught at an academy in Virginia, where he read law and was admitted to the Virginia bar. In Winona, he practiced law and was active in public affairs. He served as a city alderman, state legislator, county attorney, and public library director; he organized and was president of a railroad company, a bank, and the local cemetery association; and he taught Bible classes. He was elected district judge in 1873, and reelected in 1880.

In 1881, William Mitchell was appointed to the Minnesota Supreme Court. He was reelected three times, and served until January 1900. During his 19 years on the Supreme Court, Justice Mitchell wrote more than 1600 opinions, dealing with basic issues of contracts, torts, agency, procedure, and evidence. His opinions were models of clarity in thought and expression, and were widely cited as authoritative pronouncements of the common law. More than any other individual, he shaped the law of a young state. A century later, a Minnesota law school bears his name, his opinions appear in law school casebooks, and lawyers, judges, and scholars attach added weight to a citation of precedent when it is identified as an opinion of Justice Mitchell.

William Mitchell was a Republican until he became dissatisfied with the party's Reconstruction measures; thereafter he called himself an Independent Democrat. He was elected as district judge in a Republican district. Governor Pillsbury, a Republican, appointed William Mitchell to the Supreme Court, resisting pressure from his party in order to "satisfy the public sentiment in favor of a non-partisan judiciary." In his next three reelection campaigns, Justice Mitchell was nominated by both parties and elected without opposition. He declined to make any effort on his own behalf, considering it unbecoming in a judge to do so. In 1898, Justice Mitchell was denied the nomination of the Republican party, because a prominent Republican politician wanted the position, and he was defeated in the general election. Justice Mitchell's defeat was lamented by editorialists and legal scholars. The Pioneer Press called him "the one man on the Supreme Bench that could least be spared." The Harvard Law Review called it a "grievous miscarriage . . . whereby the electors, out of the mere excess of party spirit, refused a re-election to the Supreme Court to the ablest judge upon that bench." Professor Thayer was "astonished" that the state could refuse the services of "one of the few judges in the country that stand out among their fellows as pre-eminent, that give it distinction."

Federal judges are appointed for life by the President, with the consent of the Senate. The 13 original states provided for appointment of judges by governor or legislature, as did all states that entered the Union before 1845. Jacksonian populism led to the adoption of systems for popular election of judges; by 1860, 22 of 34 states held partisan contested elections, and this trend continued with all states that entered the Union before 1912.

By the end of the 19th century, reformers were beginning to question popular election. In 1906, Roscoe Pound warned that "putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench." Between 1900 and 1917, several states adopted alternatives to partisan elections of judges. In 1914, Albert Kales, a Northwestern University law professor and Research Director of the American Judicature Society (and grandfather of my college roommate), proposed a plan for merit selection of judges and retention elections.

The first state to adopt such a plan was Missouri. Under the Missouri Plan a selection commission nominates judicial candidates based on merit, the governor appoints judges from the commission's nominees, and appointed judges stand for retention in non-competitive elections. Currently 34 states have some form of merit selection. In 11 states, appointed judges never face popular election. Twenty states use retention elections in which incumbent judges run unopposed. Seven have partisan elections and 14 have nonpartisan elections.

Minnesota law provides for contested nonpartisan election of judges, and appointments by the governor to fill mid-term vacancies. A merit selection system applies to appointments of district judges. As a practical matter, most judges are initially appointed to fill vacancies created by retirement, and few incumbent judges face election challenges. Election rules and tradition have generally favored incumbents over challengers. Restrictions on candidate activities and speech are intended to reduce political influences on elections.

In recent years, judicial elections in several states have been influenced by politics, interest groups, and campaign contributions. Incumbent judges have been targeted for defeat based on rulings involving tort reform, punishment of criminals, abortion, pollution control, and financing public education. Millions of dollars have been contributed and spent on election campaigns. Large contributions have been solicited from and made by lawyers and litigants with matters pending or expected to come before the courts. Some candidates have engaged in unseemly campaign conduct. Such factors threaten the independence of the judiciary, and reduce public confidence in its integrity.

Minnesota has enjoyed a tradition of a strong and independent judiciary. It should not be taken for granted. Election rules alone cannot prevent corrupting influences or unseemly behavior, but we must defend or strengthen the rules that serve those purposes. And we must resist and condemn any threat to the independence, integrity, and dignity of the judiciary.

Kent A. Gernander is president of the MSBA. A general practice and trial lawyer in the Winona firm of Streater & Murphy, P.A., he is a graduate of Harvard College and of the University of Minnesota Law School.