Minnesota Republican Party v. White and the future of state judicial selection.

• Author: Schultz, David A.

Judicial selection is a historically sleepy affair for many states. Once characterized as "about as exciting as a game of checkers ... [p]layed by mail," (1) non-partisan judicial elections involving unopposed incumbents seeking reelection seldom attracted much attention either from the media or voters. (2) With limits in many states on what candidates could say, as a result of judicial or legal canons, voters knew little about those running for office. (3) The result was elections often devoid of debate or information that may be instructive to voters. (4) In a handful of states, however, including Texas, judicial selection is partisan, raucous, expensive, and hotly contested. (5) For those fearing the worst of what a politicized state court system could be, Texas is an anomalous nightmare ... or is it?

As a result of two court decisions in Republican Party of Minnesota v. White--the first by the United States Supreme Court (hereinafter White), (6) and the second by the Eighth Circuit Court of Appeals (hereinafter Republican Party of Minnesota) (7)--the next round of state judicial elections in Minnesota, New York, and elsewhere could include not just candidates seeking party endorsements but also soliciting contributions and announcing positions. (8) As a result, the future of many sleepy judicial elections may look increasingly more nightmarish like Texas.

This article examines the future of state judicial selection in light of the two Republican Party of Minnesota v. White decisions. Specifically, it explores what options states, especially those having non-partisan judicial races, now have to promote judicial independence whether they wish to stick with an elected court system or move towards another means of selecting judges. Part I of this article examines the politics of judicial selection. Specifically, it examines the different types of state judicial selection methods and assesses whether they make a difference in terms of who sits on the bench and how cases are decided. Part I also examines the experiences that states have had with partisan elections. It concludes by examining the reasons for recent trends towards the politicization of state judicial campaigns.

Part II shifts to an examination of the two Republican Party of Minnesota v. White decisions. This section attempts to first describe judicial selection in Minnesota prior to the White decisions and set the context for the litigation in the cases. The remainder of Part II provides a detailed analysis of the two decisions.

Part III of the article shifts to exploring what options states have for judicial selection in light of the two White opinions. The first part of this section will ask whether the White opinions should be read narrowly as only prohibiting some types of regulation of judicial campaigning and speech or whether they should be read more expansively signaling that judicial elections and campaign speech should be seen as no different than other races for competitive office. To help clarify the impact of the White opinions, examination of their treatment in subsequent disputes by other courts shall be examined. Finally, this part of the paper concludes with what options there are to "fix" judicial selection--be it with elections or an appointment process--in light of the White opinions.

Overall, the argument of this article is that the two White opinions should be read broadly as significantly offering judicial campaign speech the same First Amendment protection as afforded rhetoric in other competitive races. If states fear that competitive judicial campaigns where candidates announce their positions affiliate with political parties and other groups or solicit political contributions are a threat to judicial independence, then there is little they can do so long as elections are used to select judges. Instead, as both the Supreme Court and the Eighth Circuit declared, the turn to elections to select judges forfeits judicial independence for public accountability. This leaves states with few, if any, options short of moving towards an appointment system for judges if they wish to preserve an independent judiciary.

1. THE POLITICS OF STATE JUDICIAL SELECTION

   Four points emerge when examining state judicial selection methods. First, states display a variety of judicial selection methods. Second, judicial selection methods matter. Third, the experience of states with partisan elections has not necessarily been good. Finally, courts are major policy players in states, continuing the political battles fought out at either the federal level or in capitols across the country.

   1. Judicial Selection Methods

      The twin poles of judicial independence and public accountability have dominated state judicial selection since the early days of the republic. (9) As a result, efforts to ensure that judges are independent and not indebted to political parties, special interests, or otherwise biased has been one goal which has influenced judicial selection methods. (10) Yet at the same time, worries that judges would become corrupt, out of touch, or lack accountability if left too independent have also influenced the choice of judicial selection methods. Examination of state judicial selection methods over time reveals this effort to balance independence with accountability. (11)

      Over time, states have displayed a variety of ways of selecting their judges. Until 1812, states used an appointment process to select their judges. (12) In that year, Georgia became the first state to use elections as a method of choosing at least some of its judges. (13) Georgia was soon followed by Indiana and Mississippi (14) and by the end of the Civil War, the spirit of Jacksonian populism yielded twenty-four of the thirty-four states using elections to select judges. (15) Every other state subsequently admitted to the union opted for judicial elections. (16) By 1927, fears that judges were corrupted by party politics led twelve states to adopt non-partisan judicial races (17) and concern that judicial elections were not producing the most qualified judges ushered in the advent of merit selection systems. (18) Merit plans, otherwise called or referred to as the Missouri Plan because it was the first state to adopt this method in 1940, (19) involved the creation of a judicial commission that screens and then recommends qualified judicial candidates to the governor who then selects from that slate. Subsequently, after one or more years, there is a non-competitive retention election that lets the voters decide if they wish to keep that judge on the bench. (20)

      In 2002, states offered a variety of judicial selection methods. Fourteen states used the Missouri Plan to select judges. (21) Four states--California, Maine, New Hampshire, and New Jersey--used gubernatorial appointments while South Carolina and Virginia legislatures selected their judges. (22) Thirteen states including Minnesota, Wisconsin, and Washington used non-partisan elections (23) while eight states including Texas, Pennsylvania, Ohio, and Illinois allowed for partisan elections. (24) Finally, nine states including New York employed hybrid or mixed methods to pick judges often mixing elections with merit plan systems. (25)

      In addition to utilizing several methods to control judicial selection, states also imposed varying limits on what judicial candidates could say or discuss. Starting in 1924, the American Bar Association (ABA) issued a model code of judicial conduct suggesting that judicial candidates "should not announce in advance [their] conclusions of law on disputed issues to secure class support." (26) The ABA produced Canon 7B(1)(c) of the Model Code in 1972 which urged judicial candidates not to "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" or "announce [their] views on disputed legal or political issues." (27) Subsequent 1990 revisions of this "announce clause" led to the creation of Canon 5A(d)(ii) which prohibits "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." (28) Twelve states (in 2002) including Minnesota limited judicial speech based upon the 1972 language while another twenty-five drew upon the 1990 language with five other states using either the 1924 language (Montana) or other sources to define limits to judicial speech. (29)

   2. Impact of Selection Methods

      Do selection methods matter? In his study of different presidential appointment processes for federal judges, Elliot Slotnick found that they did not produce different demographic results. (30) However, other studies reached different conclusions.

      Evidence suggests that different selection processes produce different results in terms of rulings and who serves. Flango and Ducat compared five selection methods--partisan and non-partisan elections, gubernatorial and legislative appointment, and the Missouri Plan--to see if process made a difference. (31) Without reaching any conclusions, the authors suggested that researchers should look to see how selection process affected who was placed on the bench (demographic differences) and the type of decisions (output) of the courts. (32) Richard Watson and Rondal Downing found that different methods affect the quality of judges who serve (33) but that varying selection processes such as appointing judges did not depoliticize the selection process. (34) Instead, each process had its own politics and organized interests adapted to these different methods. (35)

      Daniel R. Pinello found that appointed judges are more likely to respond to a wider variety of groups and interests than elected judges. (36) Similarly, appointed judges seem more disposed to support individual rights than elected judges. (37) Thus, overall, how judges are selected may impact how they rule, with elected individuals feeling less...