Monday, August 08, 2005

What's that noise?

Spotty picked up the StarTribune this morning (August 8th) and heard kind of a muffled noise from within it. As he unfolded the paper, the noise became louder and more distinct, kind of a triumphal, demented cackling sound. Both intrigued and a little alarmed, Spotty kept turning pages until he came to Katherine Kersten's column and there she was: BRRRUCK! BRRRUCK! BRRRUCK! Then Spot saw the title of the column, Judges, get ready for political arena.

Notice, gentle reader, the placement of the comma in that headline. The column is not a description of what is happening; it is an address to judges. Look out you bad boys (and girls)! We're coming for you! The column starts out this way:
Most Minnesotans pay scant attention to our state's judicial elections. Chances are, we see the wholly unfamiliar names of candidates for judgeships on the ballot, shrug our shoulders -- befuddled -- and skip them.

But last week, the federal Eighth Circuit Court of Appeals radically altered our state's rules on judicial elections. Now those races are likely to take on the rough and tumble of political campaigns.
The principal reason that judicial elections are a mystery is because incumbent judges are usually unopposed. Judges are appointed by the governor and must then stand for reelection periodically; Spotty recalls that his lawyer friend told him every six years. The big change?

Judicial candidates may now seek political party endorsement and personally solicit campaign funds. Generally, judges work anonymously which is the way most of them like it. In large judicial districts, like Hennepin or Ramsey counties, most of the judges on the ballot will be trial judges, not Court of Appeals or Supreme Court judges. Katherine continues:
Some Minnesotans are celebrating the Eighth Circuit decision, saying we'll finally learn something about the legal philosophies behind the names on the ballot. Others are concerned about outside influences on judicial independence. Both sides have plausible arguments.
After the brief nod to the fact that some people think this is a bad idea - Katherine has been listening to the people who think she is a plodding ideologue - she spends the rest of the article telling us why it is good. So, Spot assumes this means Katherine is in favor of Supreme Court nominee John Roberts answering every question about issue positions that might be put before him in the Senate Judiciary Committee. Spot will send a copy of this post to Katherine; let him know, will you? Then Katherine says:
But to vote intelligently, people must know how judges view the law, and elections should offer judicial incumbents and challengers as level a playing field as possible.

The Eighth Circuit labeled Minnesota's rules "remarkably pro-incumbent." Our system is so stacked in favor of incumbents that few sitting judges are ever challenged and fewer still are defeated.
Spotty first has to observe that it is pretty rich for a bunch of appointed-for-life federal appeals judges to express concerns about pro-incumbency.

Political campaigns are really well suited to informing the public about things like the festering sore of the abuse of judicial ditches in the state, the candidates' view of the enumerated exceptions to the hearsay rule, and the demise of the fellow servant rule. Just kidding.

What Katherine wants, of course, is for judicial candidates to stake out positions on hot button social issues that might come before a court, especially the Minnesota Supreme Court. This is a spectacularly bad idea. Civil rights are not supposed to be subject to political whim; the whole idea behind civil rights is that they belong to individuals and are protected from encroachment by a majority, which as Spotty has observed before, is sometimes just a mob.
Critics worry that special-interest money will now dominate our judicial elections. They have a point. But special interest money is already a problem. According to the Appeals Court ruling in 2000, Minnesota Supreme Court justices' campaigns raised a total of $505,000, while only two challengers -- whose combined funds totaled about $24,000 -- even raised enough to require disclosure.

A "substantial portion" of incumbents' war chests, the court said, came from lawyers and law firm-related political funds.
Lawyers give money to incumbents, always have. One of the principal reasons is that lawyers are invested in the stability and impartiality of the bench. Having to check a judge's political credentials before a trial will not encourage faith in a impartial bench, especially when a lawyer has to tell a client that a judge was endorsed by party A or B. Will political affiliation be grounds for a lawyer to obtain a change in judge or appeals panel? What if a judge solicits funds from a firm when a lawyer in that firm is trying a case in front of the judge?

You know, the DFL hasn't been appointing judges since Rudy Perpich was governor. A lot of the judges currently sitting have been appointed since then; you really would think that conservatives would have a little more faith in the people they have been appointing.

Katherine criticizes remarks made by Alan Page:
Page stated that a neutral, independent judiciary is the key to justice. Politics, he suggested, is for elected politicians. Judges merely apply the law and enforce rules, like referees at a football game.

Are contemporary judges just impartial referees? Far from it. Many are engaged in ambitious social-engineering projects.

Let's apply Page's referee analogy to the issue of abortion. In 1973, in Roe vs. Wade, the U.S. Supreme Court yanked the issue away from legislatures and legalized abortion nationwide. In 1995, Minnesota's Supreme Court piled on. In Doe vs. Gomez, the state court forced the Minnesota Legislature to appropriate tax money to pay for abortions for poor women -- something federal courts have never required.

On abortion, judges, far from acting as referees, have put on helmets and shoulder pads, intercepted the ball, and run in one direction down the field -- ejecting other players, both Republicans and Democrats, from the game.

The people had no say.
Katherine, you should really be on the sports desk. You wield wooden metaphors with the best of them.

Our favorite communis rixatrix just cannot come to grips with the fact that many people do not agree with her on many social issues. One control freak's ambitious social engineering projects are another person's civil rights. According to Katherine, judges are just a bunch of delinquents in souped-up cars, cruising the streets looking for disputes to settle their way. Which is absurd of course.

Courts only handle cases brought to them. And by and large, there are volumes of precedent that guide and govern the court's decision. By definition, there are at least two points of view. And neither point of view wants to learn that the judge is predisposed to decide against it. They people shouldn't have a say, at least not in the conventional majoritanian sense. Some day the worm will turn and the shoe will be on the other foot. (See, Spotty is good with metaphors, too.)
Judicial independence is a vital aspect of our heritage. But if judges persist in acting like politicians, by usurping the role of our elected representatives, they'll find it hard to convince us not to treat them like politicians.
Katherine is not the least bit interested in judicial independence, quite the opposite. She and all the conservative bug-eyed control freaks just want to be able to beat a judge with a political cudgel if he or she doesn't toe the line.

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