In her concurrence to the recent Republican Party of Minnesota v. White1 (Wersal) decision, Justice O'Connor says that electing judges is a fundamentally misguided idea. If there must be elections, she opines, the "Missouri Plan" is the better way to go:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. ... If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.2

Justice O'Connor's view does not reflect the Minnesota experience. The Missouri Plan has serious flaws.

Minnesota legislators and voters should be wary of major change in our judicial election system. Here are four reasons why: (1) state trial courts are different; (2) judicial independence is encouraged in Minnesota; (3) the use of "incumbent" on the ballot to denote the sitting judge gives stability to our bench; and (4) the "Missouri Plan" has many flaws as well.

State Trial Courts are Different.
There is great difference between federal courts, where Justice O'Connor now serves, and the state trial bench. 3 Federal cases involve the unique interests of our federal government ("federal questions") as well as principles and disputes affecting the citizens of 50 states ("diversity"). Local or state elections for federal judges would make them subject to far too much parochial influence. And no one suggests there is a useful or practical way to elect federal judges using voters from more than one state.

To be sure, our district courts handle some federal questions as well as major civil and criminal matters. But the bulk of the work of state trial judges is about local law enforcement, divorce, juvenile delinquency and neglect, housing, civil conciliation, and similar matters. That is, the work involves the daily lives of thousands of citizens each week.4 Individual daily court dockets with 20-200 people on them are often seen.

Such "retail" courts place a premium upon the ability to handle high volumes of (often unhappy) parties. Most have no lawyers, and all are being greatly inconvenienced, many correctly so. Such calendars require extra courtesy, restraint, and occasional good humor. Elections make state trial judges more sensitive to how people, including lawyers, are treated in the courts. That is because all the successful challenges of judges in Minnesota for the last 30 years have been based upon widespread claims of poor judicial demeanor.5

Judicial Independence Maintained Here.
From some states, we hear of judicial independence being compromised by hotly contested elections and the campaign contributions made to them. That does not appear to have infected Minnesota elections. Minnesota judges are regularly criticized for their opinions in the news media, but we continue to call them as we see them. Why?

To date, Minnesota has encouraged judicial independence and fairness in four ways. (1) Six-year terms combined with (2) nonpartisan elections, and (3) the "incumbent" ballot designation to give us more job security than U.S. Senators. And (4) we have no big money to support challenges in our judicial elections. Those factors have combined to give incumbents a significant but not insurmountable advantage, as evidenced by the few successful challenges to sitting judges documented above. That electoral advantage permits and encourages the judicial independence so important for our free society. As shown by the few successful challenges since 1972, no judge has lost a seat because of unpopular decisions, only because of challenges based on demeanor.6

Most of the states where there have been problems with big money have partisan elections.7 Minnesota does not.8 In those states, business and union funding has been joined to interested lawyers attracted to judicial elections by "tort reform" issues, especially at the Supreme Court level.

Minnesota's Judicial Standards bar candidates from soliciting funds and from knowing who contributed to the campaigns by the committees that seek their election. Those who raise funds for judges in Minnesota say that neither unions nor businesses contribute significantly in Minnesota. The Minnesota business community is reported to be generally satisfied with the quality of Minnesota courts.9 Thus, most contributions come from friends, relatives and lawyers. In addition, with over 270 trial judges in the state, 61 in Hennepin County alone, nobody gains enough ideologically by funding unsuccessful challenges to trial judges to make the financial cost worthwhile.

Contributions in Minnesota are modest. To the extent that lawyers contribute to such campaigns, they do so out of the desire to keep or have judges who are doing Ñ or will do Ñ a good, fair job. It makes lawyers' lives easier.

"Incumbent" Gives Valuable Stability to Bench.
Some have argued that the "incumbent" designation is undemocratic and a denial of "fairness" in judicial elections. To the contrary, the designation of "incumbent" serves the valuable social purpose of a stable judiciary, changeable when there is the requisite political will. The few successful challenges keep us on our toes; the lack of opposition to most judges provides stability. An election without "incumbent" designation is apt for executive and legislative offices, but not for the different function of courts in protecting individual rights.10 Some complain about long ballots for judicial elections with no opponents and too little knowledge of the candidates where challenges are made.11 My experience is that many voters know as much about judicial candidates as they really want to know.12 Because Minnesota voters want a stable, fair, courteous, and competent bench, they want to know who the incumbent is and whether there is any serious reason to make a change. The ballot tells who the incumbent is, and the candidates and their endorsers -including lawyers and newspapers- help us decide if change is called for. With the explosion of bar, lawyer, interest group, and candidate websites, there is now little excuse for voting blind.

Since 1968, judicial candidates in both Hennepin and Ramsey counties, when endorsed by both the lawyers' straw polls and the major newspapers, have won all but one contested race.13 When those endorsements have split, the result is mixed.14

Weakness of Retention Elections.
The ABA and Justice O'Connor claim that the so-called "Missouri Plan" of judicial retention elections is better. Both a task force of our Minnesota State Bar Association (1997) and the Minnesota League of Women Voters (1997-99) recently studied retention elections and found them wanting.15

When nobody pays any attention to judicial elections, they provide stability. Once single-issue groups and moneyed interests discovered them, retention elections have been used successfully to attack judges for their controversial decisions. Big money and whisper campaigns show up at the last minute to target a particular judge without comparing that judge to a potential replacement. That happened to Supreme Court judges in California and Tennessee16 who issued controversial decisions in death penalty cases. Their records were distorted by special interest groups with big money behind them.

Even worse, retention elections mean that every judge has to worry about opposition at every election. When no one is required to file as an individual challenger, no judge knows if there is a move to replace him or her until too late. By contrast, in Hennepin County this year, 21 of 28 judges whose terms expire have no opponent. Thus, stability of 21 judgeships is assured and those 21 are freed of electoral concerns. The same is true of the appellate and other Minnesota trial court judges who have no opponents.

As this is written, the 14 sitting judges with challengers17 are forming committees to campaign on their behalf.18 They will be distracted for four months. If prior experience continues, one might lose. That is a small price to pay for a bench that is fundamentally competent, fundamentally fair, and stable but not unchangeable.

Don't Change Now; Keep the Money Out.
As things stand, we should keep our present system of judicial elections. The numbers of judges, their six-year terms, nonpartisan races, small money involvement, generally civil debates, remaining campaign restrictions in our Judicial Ethics Code, and generally fair and competent work of our judges have protected us from the evils that Justice O'Connor and her majority colleagues fear about elections. They also protect us from trial court judges who treat people poorly or are regularly unfair.

The Court's recent decision in Republican Party of Minnesota v. White has probably encouraged a few opponents this time. We will see some more in the next couple of elections as people plan how to use the new freedom to speak. To date, Minnesota has rejected big money judicial campaigns. As long as big money stays on the sidelines, Minnesota likely will continue to have a competent, fair, and stable but changeable judiciary. If special interests and moneyed interests successfully target many fair, competent, courteous judges, Minnesotans will likely reconsider our system.

In the meantime, both judges and citizens will continue to be the beneficiaries of the wisdom of our state's founders. They created a constitution and a judiciary remarkably free of partisan taint and still protective of individual rights and fairness to all.

NOTES
1 . Republican Party of Minnesota et al. v. White et al., No. 01-521, ___ U.S. ___ (filed 06/27/02) http://laws.findlaw.com/us/000/01-521.html
2. Id., Concurrence 1.
3. Justice O'Connor served as a judge of the Arizona trial courts and a justice of the Arizona Supreme Court. Perhaps the partisan elections there have affected her view.
4. In Hennepin County alone, there are about 750,000 court filings each year.
5. With about 300 seats up for election, there have been only five successful Hennepin County challenges since 1966: 1974 (Sedgwick over Edstrom); 1976 (Albrecht over Chapman); 1990 (Wexler over Rogers); 1994 (Karasov over Rice); and 1996 (Steenson over Christensen). In Ramsey County only three challenges have been successful: 1984 (Marrinan over Kirby); 1996 (Finley over Sands); and 2000 (Tilsen over Bowser). In Greater Minnesota there have been two recent defeats of sitting judges: 2000 (Goodhue County -Blakely over Hong) and 1994 (Carlton County - Merritt over Seitz).
6. Ibid.
7. A recent trial bench race in Tuskegee, AlABAma is reported to have required raising $175,000. For a short summary of the issue in other states, see the editorial "Fundraising Taints Judicial Elections, Impartial Justice" at http://www.usatoday.com/news/opinon/editorials/2002-09-17-edit_x.htm.
8. The largest sum I have heard spent for a judicial race in Hennepin County is $50,000 - and that was the losing candidate's attempt to save a seat. In a county with 700,000 registered voters, $50,000 is pennies in today's world of election finance.
9. The U.S. Chamber of Commerce ranked Minnesota as fifth in the nation in the competency of its judges. U.S. Chamber of Commerce, State Liability Systems, Ranking Study, Final Report, January 11, 2002, p. 17. In that same survey, Minnesota juries were rated fifth best by Chamber standards in their predictability. http://www.litigationfairness.org/pdf/liabilities_survey.pdf. Minnesota is a state where attorneys reasonably expect to get a fair hearing.
10. The 1999 study of the Minnesota League of Women Voters strongly recommends keeping the "incumbent" designation. [http://www.lwvmn.org/PosCriminalJustice.html#Judges]
11. Recent Minnesota studies note how few people in a post-election survey could remember whom they voted for, much less why. No comparative statistics for legislator, Library Board, or Watershed District member were given. See Minnesota State Bar Association, "Report and Recommendations of the 1997 MSBA Task Force on Judicial Elections," June 19, 1997, http://www2.mnbar.org/judicialselection/tfindex.htm; see also Minnesota League of Women Voters, "1997-99 State Study: Election of Judges," http://www.lwvmn.org/EdFundJudicialElections.html.
12. If we really want to reduce voter frustration and confusion the Legislature could declare elected any judge with no opponent when filings close. No one can remember when a judge has lost a write-in challenge.
13. Poston over Peterson in 1996, but by less than 1 percent of the vote.
14. Winners: Hennepin 1976 (Albrecht) and 2000 (Karasov). Losers: 1996 (Sands) and 1998 (Bowser).
15. See note 11, supra.
16. The most recent example is Tennessee Supreme Court Justice Penny White.
17. Hennepin =7; Ramsey = 1; Greater Minnesota = 6.
18. So also were the 12 aspirants for the open ("Atkins") seat in Scott County, 1st Judicial District. The primary results will have narrowed that to two by the time this is published.

STEPHEN ALDRICH was elected in 1996 as a judge of the 4th Judicial District, Hennepin County. He now has an opponent for reelection this fall. Details may be found at www.hcba.org, www.mw-lawyers.org, and www.minn-lawyer.com