Remarks of the Hon. Eric Lipman at Hamline University Law School
2006 Constitution Day Symposium on Judicial Elections
Thank
you for including me in this important discussion.
It is good to be with you.
Because
of the breadth and depth of the topic that is presented today, and the items
that I would like to touch upon, I am going to make a number of points quickly,
in fairly summary fashion, with the hopes that if I have been unclear, I can
expound on my remarks during the panel discussion or perhaps in one-on-one
conversation with you folks later.
My
theme today is two-fold:
a.
First, the objective of the current discussion on judicial selection,
should, in my view, be to improve public confidence in the state courts.
b.
Second,
of all of the possible threats to public confidence in the state courts that
have been mentioned today, only one really matters.
This threat is larger and more ominous than any of the remaining
concerns; and indeed is larger than all of the other concerns combined.
The real threat to public confidence in the state courts system is
not speech, or endorsements, but fundraising by judicial candidates.
So,
in my view: Our challenge is to find
a way to boost public confidence in the courts, while avoiding the corrosive
effects of fundraising by judicial candidates.
And
this is a struggle that has been with us for some time.
From the very days of the founding of our state, Minnesotans have
wrestled with the question of how best to select and retain judges.
We have agonized over this question because Minnesotans truly want to
have sturdy confidence that our judges are following the command of the law, and
not their personal preferences; and to have genuine remedies, if their judges
depart from this important standard.
The
debates of the territorial Minnesotans makes clear that those who founded our
state hoped for genuine accountability when they established an elected
judiciary. And it is a view that is
shared by their descendants nearly 150 years later.
The importance of real accountability was a theme that was sounded again
and again when the citizens themselves came to testify before the Quie
Commission.
What
has changed since the state’s founding, is demographics.
To read the debates of the delegates to the constitutional convention is
to be confronted with their key, underlying assumption; that is now no longer
true. The territorial Minnesotans
assumed that anyone who was a candidate for judicial office would be well known
in the community in which he was running for office.
In 1858, campaign fundraising was not an issue because
Not
so anymore. The most frequent
complaint heard today about the canary-colored ballot that lists the judicial
candidates is: Who the heck are
these people? Even the lawyers with
active practices aren’t always sure….
And
this is how the Pre-White system (and to the extent it hasn’t been
changed, our current system) fails our collective hopes for confidence in the
state court system, because this system:
a.
Provides virtually no information on the performance of judicial officers to the
very citizens who pay judicial salaries, and from whom, the “judicial power”
is received;
b.
Secondly,
it fails us because it vilifies those who want to add to the available
information about the performance of judicial officers; labeling them as
dangerous; or mean-spirited; or partisan hacks.
And that’s not helpful.
Which
brings me to my second theme: Fundraising
is the real threat. For reasons that
are well detailed and well explained in the various White opinions (and I
have provided links to those items in the handouts), the prospect of a judicial
candidate attending a convention, or making a public statement about the law, or
self-identifying as a member of political party, all raise concerns that are
small in comparison to the prospect of judicial candidates (or their proxies) of
soliciting thousands, or perhaps millions, of dollars in campaign contributions.
And
to my mind, lumping in the so-called “partisan clauses” of Canon 5 in with
the challenges presented by judicial fundraising, distracts us from this real
issue — sort of like opposing convenience store robberies on the grounds that
they tend create longer lines in the checkout aisle.
That point may be true; and it even might be regrettable; but it
grievously misses the much larger and more important point.
In
my estimation, the principal challenge going forward is how we can:
a.
respond
to the earnest desire to know more about the performance of judicial candidates;
b.
provide citizens with
genuine remedies for poor performance by judicial officers; and,
c.
do so without requiring
fundraising by judicial candidates.
And
finally, in my view, the best choice among the various proposals – the one
that best meets the standards I have described – is Senator Tom Neuville’s
bill, Senate File 2095, from the 2003-2004 Session.
While this bill is not perfect, it does provide for a modified Federal
model of appointment and reappointment by the Governor, with intervals of review
and consent by the State Senate.
This
is a proposal I was glad to Chief Author during my time in the Minnesota House
of Representatives, and it is a proposal whose time has come.