Minnesota achieved statehood in 1858, at a time when its citizens felt a deep antipathy to the Supreme Court as a result of the Dred Scott decision the previous year. Ever since statehood, the Minnesota Constitution has enshrined the right of the people to elect judges to office, but it is a constitutional provision that has largely been circumvented by a kind of gentlemen’s agreement between the governor and judicial appointees combined with professional rules that hobble campaigns for judicial office. The United States Supreme Court struck down the keystone of these professional rules in its 2002 in Republican Party of Minnesota v. White and remanded the case for further proceedings regarding the other provisions.
Bill Cooper is the chairman and chief executive officer of the company where I hold down my day job, the former chairman of the Minnesota Republican Party, and one of the most public-spirited men I have ever met. Bill has been an eloquent advocate of the meaningful restoration of the right of Minnesota citizens to elect their judges, a topic on which he has frequently spoken and written.
He forwarded the column below to the Minneapolis Star Tribune, which has not gotten around to giving it the light of day. In the column, Bill addresses the recent Eighth Circuit decision that follows up on the Supreme Court’s 2002 decision. We think the issues raised are important and worthy of the attention that Bill has devoted to them:
On August 2 the U.S. Court of Appeals for the Eighth Circuit issued a ruling finding unconstitutional a set of rules (Canon 5) created by the Minnesota Supreme Court for the election of judges (including Minnesota Supreme Court Justices). Under these rules a candidate for judge in Minnesota could not raise any money, speak out on any political or judicial issue or ask for the endorsement of any political party.
These clearly unconstitutional rules were intended to bypass the will of the people of Minnesota, as mandated in our Minnesota Constitution, that judges will be elected by the voters. These rules were constructed by the Minnesota Supreme Court to protect incumbent judges, including themselves, from competitive elections. In fact, virtually 100 percent of incumbent judges are re-elected because the voters have no information on the candidates.
Much has been written in the editorials, news pages and columns about the dangers of competitive elections for judges. A good case can be made that appointments of judges are better than elections. However, the road to hell is paved with good intentions. I myself am ready to trust the voters and the democratic system. Some 30 states in the U.S. elect judges. If supporters of appointment want to change the Constitution, they can seek a constitutional amendment. Those people who think the appointment system is less political than elections need only look at the huge political battle brewing over the current U.S. Supreme Court nominations.
What has not been written about in the media is the danger present when the majority of our legal community, our elected officials and even that entity that is sworn to uphold our constitution, the Minnesota Supreme Court, construct a set of rules for an election mandated by our Constitution, that are clearly unconstitutional. Can the highest court in Minnesota really argue that they didn