Under a constitutional democracy, freedom, liberty, and personal independence exist only if society compels the institutions of government to be governed by the rule of law. Under such a system, the necessary condition that must exist before the law can be useful in restoring freedom and liberty is the equal sharing of power between the various institutions of government. However, such co-existence and equal sharing of power is not sufficient to guarantee preservation of individual rights under a constitution. Such a guarantee exists only if the members of each of the executive branch, the legislative branch, and the judicial branch are held to account to society for their decisions and actions. In Minnesota, the constitutional right of the voters to hold the judiciary accountable has been severely restricted by a set of laws that: (1) strongly discourage challenged judicial elections; (2) encourage those voters who do vote for judges to select the “Incumbent”; (3) deny the voters the power to decide who will be their judge; and (4) disallow the voters their right to consent to the judicial selection.
Article VI, Section 7 of the Minnesota Constitution states that: Judges “shall be elected by the voters from the area which they are to serve.” On the face of the constitutional mandate, it appears that the voters have the right determine who is their judge. That is, the voters have the right to select the candidate who should be elevated to the bench in “the area which they are to serve.” In Minnesota, the constitutional right of the voters to determine who is their judge has been denied.
Typically, in Minnesota, a judge is elevated to the bench by appointment by the Governor. The system functions as follows: a sitting judge, who is nearing retirement, steps down no later than eighteen to twenty four months before of his term of six years; a Judicial Selection Committee accepts and examines applications from attorneys who show an interest in that particular judgeship; a short list of candidates are recommended to the Governor by the Judicial Selection Committee; the Governor interviews the candidates on the short list and appoints the replacement judge. That replacement judge then stands for election in what is called a “retention election.” On its face, the system used in Minnesota appears to comply with the mandate of Article VI, Section 7 of the Minnesota Constitution.
However, closer examination of the system indicates how the system has been manipulated to strongly discourage voters from even voting for a judge and strongly discourage a contested election. As a preliminary matter, the chairman of the Judicial Selection Committee is appointed to that position by the Governor. Once appointed, he is answerable only to the Governor and no oversight of the chairman is exerted by the Minnesota Legislature. The other members of the Judicial Selection Committee are not vetted by the legislature nor is any consent given by the public to the appointment of either the chairman or the members of the Committee.
Once a sitting judge announces retirement, the process of selecting the replacement judge is set into motion. The Office of the Governor announces the vacancy and instructs that attorneys who may wish to be considered for the position should submit application materials to the Judicial Selection Committee. Candidates for the position are, therefore, self-selecting and, of course, the candidates would request recommendations from references that would be positive. The names of the candidates before the Judicial Selection Committee are not made public and comments are not solicited from the public as to the fitness of the candidates before the Judicial Selection Committee. That is, the work of the Judicial Selection Committee is made largely in secret behind closed doors.
The Judicial Selection Committee interviewed several candidates for Seat 5 in the Fifth Judicial District, which was then being vacated by Judge Bruce Gross: Nathan Busch was one of the candidates considered by the Judicial Selection Committee. During the interview, Nathan Busch was asked a number of “fluffy” questions and two questions of any note. These were as follows: (1) “what was your best case”; and, (2) “how does your political ideology align with that of the governor”?
Once the short list of candidates is sent by the Judicial Selection Committee to the Governor, the names of the candidates on that short list are made public. Even at this point, neither comments nor input are solicited from the public as to the fitness of the candidates on the shortlist. The Governor appoints the judge and the appointee then stands for what is called a “retention election” during the next election cycle. It should be noted at this point that the public was never asked as to whom they wanted as judge and the public was never allowed to give consent to the appointment of any particular judge.
On the federal level, the President nominates and the United States Senate then confirms, or not, the candidate. As has been well publicized in the past several decades, the candidates for the federal bench are rigorously and throughly scrutinized by the United States Senate on all matters, including their competency in the law, judicial philosophy, and service to society. During these confirmation hearings, input and comments from the public are not only welcomed, but solicited.
Not so in Minnesota. The Minnesota Senate has no say in either the appointment of a judge and it has no ability to scrutinize the candidate as does the United States Senate. The result of the political appointment process in Minnesota is that the risk is extraordinarily high that a judge will be seated who should not have been. Once appointed, the system that has been put into place makes it virtually impossible to remove that judge from the bench.
Nathan A. Busch