This year candidates running for open judicial seats in Minnesota will be able to announce their views on issues that may come before them during their tenure. Last term, the U.S. Supreme Court heard the landmark case, Republican Party of Minnesota v. White, holding that the Minnesota Supreme Court’s canon of judicial conduct prohibiting judicial candidates from speaking out on such issues unconstitutionally infringes on those candidates’ First Amendment right to free speech. The idea behind the Minnesota law is that judges should be nominated on their qualifications and their skills as an impartial arbiter of justice and, when occasion calls for it, as a check on the law-making powers of the legislative and executive branches of government. In actual practice, this has not been the reality, as judges are frequently appointed based on their known political sympathies. However, although judicial candidates are now properly free to speak out about legal issues, possibly restoring some legitimacy to the judicial election process, there is a danger that judgeships will now become too politicized.
Judges should decide legal issues based on notions of fairness and a thorough knowledge of the law, and not based on party sympathies, or worse, party instructions. This is already something of an issue in the federal courts, where presidents routinely favor judicial candidates that will further their political agenda. The qualities that make someone a good politician are not the same as those that make someone a good arbiter of justice. This is why it is important that judicial candidates are allowed to give voters a preview of how they will decide issues that may come before them once they are in office, but should refrain from appealing to voters’ political party sympathies.
Political risks aside, judges must be allowed to express their legal ideologies if voters are to make intelligent choices. A judge’s resume indicates whether he or she is fit for office, but not how he or she will behave once elected. Voters deserve to be able to make an intelligent choice.
U.S. Supreme Court Justice Antonin Scalia stated the irony of the Minnesota regulation succinctly: “a candidate for judicial office may not say ‘I think it is constitutional for the legislature to prohibit same-sex marriages.’ He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly Ö after he is elected.”
There are not always correct answers to every legal question. There are many approaches to judging producing many possible outcomes. Some judges take a transactional approach to every problem, and some rely on the “plain language” of statutes without taking note of legislative intent, while others do the opposite. Some prefer to quote Bible passages, while others rely on the dictionary, the edition to be determined by personal preference or the desired outcome. Of course, these different methods result in different conclusions.
Some argue that a diverse judiciary solves the problem by averaging out the various theories. However, this theory provides little comfort to individual defendants. The judiciary as a whole does not decide issues of law. Individual judges do. Diversity of opinion may in and of itself be a valuable goal, but it also breeds unpredictability. Since nearly everyone will have to appear before a judge at some point, voters should have a say in how judges will decide their case before that happens.
The problem comes when judges are elected based on political affiliations. A judge endorsed by the DFL is not necessarily qualified for the position of judge any more than a construction supervisor. Another problem arises when judges represent their parties in office, not when they announce their views on a legal issue. At no time should a judge take instructions from a political party. This offends notions of the separation of powers and upsets the entire conception of the legal system. Any judge trumpeting a political endorsement should be viewed with suspicion.
Judges must not become politicians merely because they may now state their views. Politicians make law, while judges apply and test the law. The two are not compatible in our scheme of government.
The danger is that voters will not take the time to educate themselves about judicial candidates and merely vote along party lines. This is a danger because judges are the most directly influential source of law in our daily lives. Nearly everyone will stand in front of a judge at some point in their life, even if only for traffic court. When voters select which judge to elect, they should consider if they would want the judge to decide their own case.
