Judicial Appointments Take Center Stage
By Marie A. Failinger and Mary Vasaly

The U.S. Senate filibuster over Bush nominees Miguel Estrada and Priscilla Owens1 has momentarily put the public spotlight on the appointment of judges. At the same time, mounting concerns about the stratospheric costs and divisiveness of judicial elections for state supreme courts have caused many states to reconsider their judicial selection methods. According to the Brennan Center, in the 2000 campaign, state Supreme Court candidates' war chests measured a 61 percent increase over 1998; and on average, candidates for states' highest courts raised $430,529 each, with 16 raising over $1 million.2 Texas' popular state chief justice Tom Phillips has called for an appointment system in his state.3 A number of states are debating adoption of the so-called "Missouri plan" that appoints justices on a nonpartisan basis but subjects them to retention elections.4 Similar calls for more gubernatorial appointments have been heard in states like New York, where a 2002 survey of 180 elected New York City justices found that nearly half were no better than marginally competent.5

Concern with judicial independence has mounted so high that the American Bar Association's recently issued report, "Justice in Jeopardy," which was slated to be presented for adoption at the aba Annual Meeting this month, highlights judicial selection as a critical component of ensuring justice.6 The aba's Commission on the 21st Century Judiciary took the significant step of recommending that states move to appointment systems.7 In the view of the Commission, states would ideally appoint judges for a single, lengthy term -- recommended to be 15 years or until a specified age -- after which the judge would not be eligible for reappointment.8 These judges would be selected by state governors on the recommendation of a "credible, neutral, nonpartisan, diverse deliberative body or commission."9 Unlike the widely touted but controversial Missouri plan, which subjects judges to voter approval through retention elections, this plan would maintain accountability through regular judicial performance evaluations and disciplinary proceedings that remove judges for cause, including misconduct.10 States that opt to retain judicial elections are encouraged to use them only at the point of initial selection, with reappointment occurring by a nonpartisan commission; or alternatively, to use nonpartisan retention elections spaced at lengthy intervals instead of regular contested elections.11

At the same time these national debates have occurred, Minnesotans have witnessed the expanded use of the Commission on Judicial Selection to recommend appointees for judicial office, not only for district court and worker's compensation court of appeals seats as the law mandates,12 but also for appellate appointments. Governor Jesse Ventura, who appointed 72 judges during his term, including 60 district judges, has received high marks not only for his appointments but for using an independent commission to recommend candidates for appellate judgeships, including the Supreme Court appointments of Justices Helen Meyer and Samuel Hanson.13 Though Governor Tim Pawlenty's only appellate selection to date, the appointment of Sheryl Ramstad to the Minnesota Tax Court on January 2, did not utilize a public commission process, in a recent interview, Eric J. Magnuson, the new chair of the commission, has recommended that the governor pass all appointments through the commission.14

If it is successful, the move toward merit selection will require those states that have not employed a nonpartisan merit system to be more conscious of the factors that make a great judge. Even states like Minnesota that currently employ merit systems or mixed merit-election systems will be required to rethink these issues, given the increasing number of administrative and public leadership responsibilities imposed upon judges. The aba Report, "Justice in Jeopardy," highlights "eight enduring principles" that should be "central to each state's understanding of the role of the judiciary as a coequal branch of government."15 These principles include the following judicial responsibilities: to uphold the rule of law; to act impartially and independently; to possess the appropriate temperament and character, capabilities and credentials; to have the confidence of the public; to be diverse and reflective of their communities; and to act in a way that "promotes public trust and confidence in the courts."16

At least some commentators in other states have argued that nonpartisan judicial appointment processes have been particularly important in achieving the aba's goal of a diverse judiciary,17 although in other states, such as New Jersey, gubernatorial appointments have not necessarily achieved gains sought by minority lawyers.18 Governor Ventura's use of a nonpartisan judicial selection mechanism has appeared to encourage qualified attorneys without significant ties to political parties or the legal establishment to apply for judicial positions, resulting in a highly selective pool in which only 5.3 percent of applications were successful.19 Even though the governor explicitly disavowed using race or gender to make his judicial selections, it is interesting that the merit selection process in Minnesota during the Ventura years produced 32 percent women judges, 8 percent African Americans, and 1 percent each Hispanic-, Native- and Asian-American judges, a result that equaled or exceeded the applicant pool for most categories.20 In terms of age diversity, the largest number of judges appointed were between 40 and 49 (51%) or 50 and 59 (38%), though smaller numbers were between 30 and 40 (8%) or 60 and over (3%).21

In light of both national and local developments, bar organizations and lawyers need to think hard about their increased responsibilities to participate in the selection of good judges. These organizations will be called upon to meet the increasingly visible need for public education about judicial qualifications in those states that retain an elections system as part of their judicial selection and reappointment process. Indeed, more public discussion on these issues may be particularly important in light of continuing lawsuits to invalidate judicial conduct rules that prohibit judges from soliciting campaign contributions themselves, seeking political endorsements, speaking at political conventions, and identifying themselves as party members.22

This is an historic time in the development of an optimal judicial selection process. Although most lawyers would agree that a state's method of selecting judges has a profound impact on the judge's independence and public confidence in the judicial system, there remains a wide divergence of opinion regarding which method best fosters these goals. Minnesota and other states will struggle with these issues for some time.

NOTES
1. See Gregory Page, "Solving the judicial appointment crisis," The Washington Times, May 11, 2003, at B03, 2003 wl 7711064.

2. See Deborah Goldeberg, Craig Holman and Samantha Sanchez, "The New Politics of Judicial Elections: How 2000 Was a Watershed Year for Big Money, Special Interest Pressure, and TV Advertising in State Supreme Court Campaigns," http://www.justiceatstake.org/files/JASMoneyReport.pdf at 4.

3. See e.g. David Pasztor, "Should Texas elect its judges?" Austin American-Statesman, Dec. 2, 2002 at A1, 2002 wl 101146481; see also Richard A. Roman, "Texas must review how it picks its judges," El Paso Times, April 27, 2003, at 09, 2003 wl 6732133.

4. See e.g. Roman, supra note 3.

5. See Marv Fishman, "Merit process is better at filling judgeships," Albany Times Union at A10, 2003 wl 5018114.

6. See American Bar Association Commission on the 21st Century Judiciary, "Justice in Jeopardy" 89-108, http://www.manningproductions.com/ABA263/finalreport.pdf (visited June 16, 2003).

7. Id. at 93.

8. Id. at 92, 96-97.

9. Id. at 93.

10. Id. at 93, 97.

11. Id. at 99-103.

12. See Minn. Stat. 480B.01.

13. See Mark Cohen, "Jesse Ventura's error [sic] as MN governor comes to an end," Minnesota Lawyer January 13, 2003, 2003 wl 16071336.

14. See Michelle Lore, "An interview with Gov. Pawlenty's top advisor on judicial picks," Minnesota Lawyer April 14, 2003, 2003 wl 16071480.

15. See ABA Commission on the 21t Century Judiciary, Executive Summary, "Justice in Jeopardy," http://www.manningproductions.com/ABA263/ABA263_ExecSummary.htm.

16. Id.at 2.

17. See e.g. David Jordan, "Minorities win with Utah's judicial selection process," Deseret News AA02, February 9, 2003, 2003 wl 1172034.

18. See e.g. Robert G. Seidenstein, "Guv's Court Picks Make Little Diversity Dent," New Jersey Lawyer 225, February 10, 2003.

19. See Cohen, supra note 13, at 2.

20. Id. at 2-3. The exception was Asians and Asian-Americans, who constituted 2.2% of the applicant pool but only 1% of the appointees.

21. Id. at 3.

22. See Pam Louwagie, "Judicial Election rules challenged anew; Ex-candidate, Republicans want campaign restrictions eased further," Star Tribune, Dec. 11, 2002, at 3B, 2002 wl 5388386.

MWL Refines Endorsement Process

Since it appears likely that judicial appointments will continue to be an important avenue for the selection of judges in Minnesota, Minnesota Women Lawyers ("mwl"), which endorses judicial candidates for appointment and election based on merit, is implementing changes to its appointments endorsement process to ensure that the most highly qualified women and men seeking judicial office will be endorsed.

Mwl does not solicit candidates for endorsement, nor does it use partisan, political or ideological criteria for endorsement. Candidates for endorsement do not need to be members of mwl, nor must they agree with its goals and programs other than its mission of securing the full and equal participation of women and men in the legal system. Mwl expects to continue its policy of endorsing more than one candidate for the same position if each is qualified.

However, candidates must demonstrate that they meet mwl's criteria for highly qualified judicial applicants. These criteria are imposed to provide "added value" to the commission process of selecting applicants to interview by increasing the amount of information and evaluations that the commission receives from the judicial application and references. Mwl criteria not only include the requirements of sufficient work experience and education, but also ask whether a candidate has appropriate supervisory experience, significant community experience, personal characteristics such as integrity and moral courage, and the ability to be courteous and impartial to those in his or her courtroom. Candidates for endorsement also submit a brief writing sample to demonstrate that they possess excellent writing and analytical experience.

Minnesota Women Lawyers continues to monitor statewide judicial developments, to educate the public on judicial qualifications and independence, and to provide its best advice to the Judicial Selection Commission and the governor as they seek to identify the most qualified individuals to serve as Minnesota judges.

MARIE FAILINGER is a professor of law at Hamline University School of Law. She has cochaired the Minnesota Women Lawyers Endorsements Committee, Appointments Subcommittee, for the past two years.

MARY VASALY is an attorney with Maslon, Edelman, Borman & Brand. She has cochaired the Minnesota Women Lawyers Endorsements Committee, Appointments Subcommittee, for the past two years.