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Checks needed on governor's power to appoint justices

Before a governor appoints a District Court judge in Minnesota, he (or she) is required to first allow a merit-selection commission to screen potential candidates and submit recommended finalists (typically three) for the post. The governor can at this point do one of two things – select one of the finalists for the judgeship or ignore the commission’s recommendations and appoint somebody else.

Governors rarely follow the latter course of action as it opens the selection up to all kinds of public scrutiny. In fact, in the hundreds of trial court picks made by the last three governors, only one judicial selection has been made outside the commission process.

There is no statutory requirement of any vetting for gubernatorial appointments to the Court of Appeals and Supreme Court. Minnesota governors have nonetheless customarily appointed an ad hoc committee to aid them in their selection of appellate judges. Given that the governor appoints all of the members of the ad hoc committee, such a measure is only a limited check on the governor’s appointment power. However, if the governor should stack the screening committee with cronies and partisan hacks, the formation of the committee would not inspire any public confidence in the choice.

In making his Supreme Court picks, Gov. Tim Pawlenty has eschewed a commission process. With his recent pronouncement that this month he will be interviewing candidates to replace Chief Justice Eric Magnuson, he appears poised to once again make his appointment via committee of one.

So far, Pawlenty’s high court picks have included his former lawyer, a former law partner and a former lawyer for the Republican Party.

As a lawyer himself, Pawlenty knows a lot of excellent lawyers. His appointments to the bench have generally been regarded to be very good. And, in fact, despite their various connections to him and/or his party, Pawlenty’s appointments to the Supreme Court bench have worked out very well. The Minnesota Supreme Court has maintained its excellent, nonpartisan reputation.

On the other hand, the Pawlenty administration has not exactly represented banner years for expanding the diversity of the Minnesota Supreme Court, once the only state high court in the country to have a majority of women justices. Three of the governor’s appointments have been white men – and the fourth was a white woman. Just two of the court’s seven sitting justices are women. The only African American on the court got his seat through election rather than through the appointment process. There are no other minority groups represented on the court, which makes key decisions on issues of importance to an increasingly diverse citizenry.

A system that allows any one person unfettered discretion in appointing a post as important as a Supreme Court justice is troublesome. The federal judicial appointment system requires the U.S. Senate to sign off on presidential picks. Minnesota’s only check on the governor’s appointment power is to give voters the chance to vote for someone else in the next election. However, there is no guarantee that whoever runs against the incumbent – even an incumbent who is a patronage pick and/or the result of a poisoned appointment process — will be any better or even be able to raise the funds to be elected.

The various judicial election reform proposals being batted about all agree that some limits need to be set on the governor’s appointment power – be that a legislative signoff or a mandatory merit-selection commission process.

Regardless of where you stand on judicial-election reform, it’s hard to argue with placing restraints on the governor’s appointment power. Otherwise you run the risk of having a second branch that looks entirely too much like the person who happens to head the first.

While it’s a truism that “it’s good to be king,” in the case of Minnesota governors making judicial appointments, it’s a little too good.

2 comments

  1. If you want a check on the governor’s power to appoint, how about having judges serve out their terms? It is ridiculous that Judges in this state routinely retire prior to the expiration of their terms. Then at least you would have “open seat” elections once in awhile.

  2. The Star Tribune has reported, sorry I do not have the citation, that Pawenty threatened to veto a draft proposal to require merit selection of appellate judges.

    Additionally, my concern about the current proposals for judicial retention elections is that they involve appointed merit panels for both selection and retention, but examination shows that the governor directly and indirectly appoints a majority of the members of the panels. Perhaps your point that the panels could not be stacked without it being apparent to the electorate is valid, that does not stop it from happening. If the governor is in fact a polarized figure the exposure of bias in the merit panels would have no impact on that individual.

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