If a lawyer or a frequent litigant donates a few dollars, or a few hundred dollars to my reelection campaign, and a citizen interested in the outcome of a case sits in the courtroom with a clipboard assessing whether my conduct is sufficiently harsh or sympathetic to his or her cause and grading my demeanor and every ruling, which of the two is most likely to influence my conduct on the bench? The multiple-choice answers are:

a. The donor?
b. The righteous citizen?
c. Neither?
d. Both?

Each is exercising a 1st Amendment right. Each is attempting to influence my conduct and the manner in which I exercise my judicial duties. The donor is attempting to positively influence my judgment; the citizen with the clipboard is, frankly, trying to intimidate me. If I don't fashion my rulings to suit his or her interests, I'm going to need the donor more than ever.

Next question: Does anyone really want an independent judiciary? The correct answer is "Yes." The same people who really want a fair and impartial jury want an independent judiciary. Most likely it is neither the guy with the campaign check making a deposit in the "Favor Bank," or the avenging angel with the clipboard.

There was a lively discussion at the fall meeting of the state's judges. It was about The Republican Party of Minnesota vs. White, the decision by the U.S. Supreme Court on June 27 of this year that, it was predicted, will eventually make Minnesota judges better politicians and, it is feared, have a commensurate affect on their decisions. As a result of White, judges are no longer protected from robust political debate on "hot-button" issues - gun control, abortion, school vouchers - during election campaigns, and elections may become expensive, and judges will have to raise campaign funds, and the character and the quality of Minnesota judges will become less judicial. And as they pay political homage to Darwin, judges will become more like legislators. (There may be some irony that the crusade whose battle cry has championed the defeat of judicial activism may cloak those despised as "legislators in black robes" with the political legitimacy of legislators.)

A wise man (Henry T. Lummus), who wrote a book on trial judges in 1937, once made a most apt comment, which seems to fit the current circumstance:

There is no certain harm in turning a politician into a judge. He may be or become a good judge. The curse of the elective system is the converse, that it turns almost every judge into a politician."

So, who gains when the fairness and the exercise of fundamental human rights dependent upon judicial selection and retention becomes a commodity that can be bought and sold? Another multiple-choice question may be appropriate:

a. Corporate America and their large law firms who can marshal the contributions of their executives, partners and employees?
b. Special interest groups and zealots on either side of "hot button" political issues who can organize political action committees (pacs)?
c. The other two branches of government - the legislative and executive - as power taken from one branch of government will be assumed by one of the other two?
d. All of the above?

Judges running for reelection, unlike legislators who have a wide fund-raising base that permits them to be relatively independent of any one contributor or political action committee (PAC), are likely to find that their primary constituency will continue to be lawyers. Survival in office will depend upon not alienating those lawyers in large law firms who can groom candidates from among hundreds of partners and associates, and who can marshal campaign contributions from among the large corporate interests of their clientele (a concept not lost upon members of large metropolitan law firms who led the charge for public judicial evaluations). If judicial selection becomes solely a creature of electoral politics, a shift in power is certain to occur. As one of the speakers at the judges' meeting this fall observed, an independent judiciary has become a casualty of the "cultural war."

Political commentator Norm Ornstein of the American Enterprise Institute commented in the Minneapolis Star Tribune of September 27, 2002, that the country has never been so politically divided along partisan lines, "Republicans and Democrats in Congress have reached an unparalleled state of ideological polarization with few members of either party holding views anywhere close to the center," said Ornstein.

The "cultural war" has also become a partisan war on a nonpartisan, independent judiciary. It has raged since the rejection by the U.S. Senate of the nomination to the U.S. Supreme Court of Robert Bork in 1987. In Minnesota, it claimed Hennepin County District Judge Pamela Alexander and former state Supreme Court Justice Sandra Gardebring, both nominated for the federal bench by Democratic Senator Paul Wellstone. Both appointments were blocked by opposition from Republican senators. This summer the judicial front of the "cultural war" has claimed President Bush's nominees to the 5th Circuit, Charles Pickering and Priscilla Owens, both casualties of a Senate Judiciary Committee with a majority of Democrats. Minnesota judges became casualties when the same U.S. Supreme Court majority that installed George W. Bush as the 43rd president of the United States in Bush vs. Gore struck down the state's judicial election system this summer.

If White has signaled a new age of judicial selection and retention, the expense of political campaigns may insure that Wal-Mart-style marketing dominates the competition: "Always the best price, always," is likely to become "Always a high price, always." Independent jurists may go the way of independent "ma and pa" businesses such as motels, hardware and drug stores. Outside of bar associations, it is difficult to find dedicated defenders of an independent judiciary. Committed conservatives and liberals believe in a coequal judicial branch of government with the same ardor that most litigants want a "fair" jury. For conservatives, courts get in the way of natural selection, and liberals, who appear to believe in a judicial branch, don't think it ought to have much authority. They prefer statutory law and continually find more and better ways to legislatively strip the judiciary of as much discretion as possible. (According to liberal legend the judicial system historically protects only wealth and property anyway.)

Question: Who is likely to win the cultural war that judges have become caught up in?
Answer: The same side that "wins" every war.

The judges assembled at this fall's meeting were cautioned to begin making plans to organize political committees and to prepare for contested elections. After the decision in White, pundits said nothing will ever be the same. Maybe it's time the debate about judicial selection, until now largely confined to bar associations and the halls of the state legislature, went public. Two former legislators, now trial court judges, suggested the Legislature be lobbied to put a constitutional amendment on the next general election ballot providing for the lifetime appointment of judges, a process that would parallel the federal system. The reception for the proposal may mark one of the few occasions since biblical times when a judge has been accorded "prophet-in-his-own-land-status."

Judges are seldom sanguine. All, or nearly all, concede that if put to the electorate, the measure is not likely to pass - but the public discussion is essential. If the debate goes public, and the electorate is forced to consider the issue, they might resolve it in the same manner that Democrats and Republicans, who differed on whether judges ought to be appointed or elected, resolved it in August of 1857 when they compromised on the present system. The result over the last 145 years has been that the elections provided for by the state Constitution have become the exception, and most judges initially attain office by gubernatorial appointment. Elections have become a "safety valve," unseating incumbents only rarely when a judge's service is so noticeably poor that he or she has lost the confidence of the bar. Otherwise, challengers are almost always those lawyers regarded as outside the mainstream of the legal community. The interest of the legal profession in continuity and a reliable system of expectations is so ingrained that rarely is an incumbent judge, who is performing satisfactorily, challenged solely because of the ambition of a practicing lawyer.

Because almost nobody outside of a political fringe is enthusiastic about electing judges, and because the present system has worked so well, it is not outside the realm of possibility that once the public hears the arguments, it is likely to adopt the point of view about contested judicial elections now held by the mainstream bench and bar, and Minnesota's judicial selection system could remain largely unaffected by the decision in White.

It is even possible that in the aftermath of White, the giddy prospect of tormenting a system whose lifeblood is logic and reason has waned among ideologues, at least in respect to trial courts. Trial courts by and large resolve differences between individual litigants that seldom involve public-policy issues. Ideologues have bigger fish to fry. Ideologues are too self-important for the garden-variety disputes that are the daily fare of trial judges; they're usually interested in appellate courts, where policy issues are more likely to surface.

In this year's primary election in the 1st Judicial District, a dozen candidates competed for a vacant trial court seat. The only candidate who actively sought the support of political interest groups or a political party made an unimpressive showing and failed to muster enough votes to run in the general election. In this year's general election no incumbent judges were defeated and discussion of so-called "political issues" during campaigns was scarce. That may signal that fears of partisan preemption and the "hot button" issues that could "Balkanize" judicial elections are baseless, or that the forces of darkness were just not able to organize soon enough after the White decision to Shanghai this year's judicial elections. In either case, there is merit to having the public debate on judicial elections that can only be brought about by placing a constitutional amendment on the state election ballot.

Hopefully, Winston Churchill's comment about worry applies here: "When I look back on all of these worries," Churchill said, "I remember the story of the old man who said on his deathbed that he had had a lot of trouble in his life, most of which had never happened."

HON. BERNARD BOLAND is judge of the 7th Judicial District with chambers in St. Cloud. He is a former chief judge of the 7th District.