Advice for Dayton, judicial selection commission

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One of Gov. Mark Dayton’s most important duties will be to appoint judges when vacancies occur in Minnesota district and appellate courts.  Over the next four years, he will likely appoint 50 or more judges.  Many of his appointees will serve Minnesotans for decades after he leaves office.

The governor has chosen Minneapolis attorney Lee Sheehy to chair the Commission on Judicial Selection, and the governor and Supreme Court have filled the at-large and most district positions on the commission.  There are several judicial vacancies in the pipeline for the Commission to address.

I was privileged to serve on the commission for seven years during Gov. Arne Carlson’s terms, and to chair the commission for Gov. Jesse Ventura.  I have also been a trial lawyer for over 30 years, and have litigated hundreds and tried dozens of cases in Minnesota and around the country.

I offer these suggestions to the governor, Chair Sheehy and the commission. Hopefully some of the things I learned in my experiences will be of value as they begin the important process of judicial selection:

Select lawyers with significant trial and courtroom experience

Anyone involved in a legal proceeding will want a judge who listens to all sides, is unbiased and impartial, treats everyone respectfully, manages the proceeding efficiently and according to the rules, is decisive and applies the law fairly.

The best way to acquire the skills needed to perform well as a judge is to gain experience in the courtroom as a practicing lawyer. Litigators and trial lawyers learn the rules of procedure and evidence and courtroom and jury procedures, and know how to process a case from beginning to end.  They understand the vital role of the judge in managing the case and in resolving disputes.

A candidate’s jury trial experience is important, because a big part of a judge’s job is to preside over, or prepare for, jury trials.  Motions experience and court trials may qualify some litigators – such as family law specialists – who do not typically try cases to juries.

There is little substitute for prior courtroom experience, because there is little time for on-the-job training for new judges.  Within weeks of appointment, judges run their own courtrooms and decide cases.  The parties’ lives will be affected by a judge’s case management and decisions, so it’s important that the judge be ready and able right from the start.

Many practitioners will meet the experience requirement:  civil trial lawyers, prosecutors, public defenders and lawyers who try cases in family and juvenile courts. Just as the commission will want to recommend candidates to the governor so he can diversify the bench in terms of gender and ethnicity, the commission should provide the governor with candidates diverse in their fields of litigation practice.

Can a lawyer who does not have extensive courtroom experience succeed as a judge?  Of course – some lawyers with little courtroom experience have gone on to perform exceptionally well as judges.  Still, the best bet is to appoint judges who have learned about the courtroom process and the role of the judge from years of litigation and trial experience.

I also encourage the governor to appoint appellate judges (not within the statutory purview of the commission) who are well-grounded in the Minnesota judicial system.  Appellate judges must understand the impact of their decisions on the day-to-day functioning of the trial courts.  The knowledge and wisdom gained from years as a trial lawyer and/or trial judge will be immensely helpful in serving as an appellate judge.

‘Just say no’ to applicants who seek appointment based solely on politics

Dayton’s party has not held the governor’s office for 20 years.  There likely will be judicial applicants who believe they are entitled to appointment because of their political work for the governor, his party, or its constituent groups.  (These situations have arisen before in other, non-DFL administrations.)

But judgeships are too important to award on the basis of politics.  If an applicant does not have the necessary legal credentials and experience, the application should be declined by the commission.

Politics – unless it is too extreme – also should not disqualify a judicial candidate if the person is otherwise qualified by legal experience.  In fact, political involvement may be an important community activity that adds to the applicant’s credentials.

The commission is a line of defense for the governor in screening candidates who lack proper legal qualifications.  I encourage the governor to instruct the commission to choose as finalists only the best qualified candidates.

I also encourage the governor to say “no” to lawyers or their supporters who attempt to do an end-run around the commission, seeking appointment without being screened by the commission.  The statutory merit selection process has served the state well for 20 years.  Circumventing the process will diminish the fine reputation of our state’s judiciary.

Look for candidates with the best courtroom temperament

Some lawyers, even though they are legally experienced, lack the right personality to be a good judge.  Judges should be patient, respectful, humble, confident and decisive.  When parties leave a courtroom, regardless of the outcome, they should feel that the judge has listened to and carefully considered their evidence and arguments.

The goal of the selection process is to weed out candidates who will develop the dreaded “black robe disease,” an impatience and arrogance derived from excessive feelings of self-importance.

The commission and governor will get important clues as to candidates’ temperament, even in 15-minute interviews.  But the inherent limitations of the interview make it vitally important that the commission check on the applicants’ backgrounds.  Calls to candidates’ colleagues, adversaries, judges before whom they have appeared and other trusted sources will help identify the lawyers best suited temperamentally for the courtroom.

The commission’s work is time-consuming but incredibly interesting and rewarding. I thank Chair Sheehy and commission members in advance for their service and wish them and the Governor the best of luck in this endeavor.

George W. Soule is a founding partner of Bowman and Brooke LLP in Minneapolis.  He is former Chair of the Minnesota Commission on Judicial Selection.