Missouri Plan makes sense

Published 12:00 am Wednesday, July 17, 2002

Golden Valley attorney Greg Wersal won a big victory in his six-year attempt to undo Minnesota’s judicial selection process.

The U.S. Supreme Court, in a narrow 5-4 decision, agrees with Wersal that judicial candidates should be able to state their positions on issues before they hear the facts and arguments in a case.

Under Minnesota’s current rules, judicial candidates are prohibited from "publicly making known how they would decide issues likely to come before them as judges."

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That all changes with the U.S. Supreme Court decision. Unless Minnesota decides to change its selection process, we’re in for Texas-style judge elections. Lots of money. Special interest group money and attacks. Partisanship.

Get ready, too, for reduced public confidence in the independence and impartiality of the judicial system.

Justice Sandra Day O'Connor, though she voted with the majority, was troubled about this inevitable effect of elections.

She wrote, in a concurring opinion, that if states don't want to undermine the impartiality and integrity of the judiciary, they should appoint their judges as the federal government does or follow the so-called Missouri Plan.

Under the Missouri Plan, judges are appointed from a list put together by a nonpartisan nominating commission. They periodically come up for "retention elections," where they run unopposed. If voters reject a judge, the vacancy is filled through a new appointment. This offers some popular check on the judiciary, without undermining independence and impartiality.

As Justice John Paul Stevens noted in a dissenting opinion, the majority has forced states -- unnecessarily in his view -- to make an all-or-nothing choice between "abandoning judicial elections or having elections in which anything goes."

This was a bad decision, but Minnesota and other states should make the best of it.

Take O'Connor's advice and adopt the Missouri Plan for judicial selection. Every Minnesotan should be able to expect a fair hearing and equal treatment under the law. They should be able to expect that a judge will listen to all sides of an issue first without prejudging the outcome.