MINORITY OPINION OF “IDEAL SUBCOMMITTEE”


I have reviewed the report of the subcommittee concerning the ideal system for judicial selection/retention.

Most of the report is excellent.  I fully agree that we should recommend the elimination of judicial elections.  I also agree that the Governor should make the initial appointment from a list of candidates identified by a merit selection committee of credible, neutral, non-partisan and diverse members.  Each of these recommendations would enhance the independence of the judiciary to a greater degree than exists under the current election process.

However, perhaps because of my role as a legislator, I do not believe that the final recommendation includes sufficient standards for judicial accountability.  The following are the areas where I disagree with the subcommittee’s recommendation.

1.                  The subcommittee recommends that there be no legislative confirmation at the time of initial appointment.  I believe strongly that there must be some additional check, if we are going to eliminate elections.  The legislature is closer to the people than the Governor.  Legislative confirmation, after public hearing, would insure that public commitments of fairness and impartiality are obtained from judicial candidates.  It would allow legislators to impress upon judicial candidates the importance of separation of powers.  Legislators should have an opportunity to observe the demeanor, candor, and intelligence of judicial nominees.  The public should be able to witness this process , and provide comment, before an individual is appointed to judicial office.

For these reasons, I believe a legislative confirmation is critical.  I also recommend procedures to prevent stonewalling or filibustering of candidates.  For example, if a candidate is not rejected after one legislative session, the candidate should automatically be deemed appointed.

2.                  The committee recommends that the initial term of office for a judge be five years, and that a judicial review commission would review the judge’s performance with respect to conformance to canons of conduct and competence.  This judicial review would be done privately and confidentially.  The review committee would consist of five members appointed by the Governor, five members appointed by the legislature, and five members appointed by the Supreme Court.

In the bill that I have introduced in the Minnesota Senate, I provided for ten year terms, with opportunity for reappointment by the Governor and reconfirmation by the Senate.  The subcommittee’s suggestion of a judicial review committee would provide nominal accountability, and would allow for efficient review.


I believe it is a conflict of interest for the Supreme Court to have nominees to this judicial review committee.  Who would review the Supreme Court Justices, themselves?

However, with several changes, I do believe that the concept of a judicial review committee, in lieu of a reappointment, reconfirmation process, is workable.  I recommend the following amendments to the “review” conducted by the judicial review committee:

a.                   The review committee should consist of 12 members, 6 appointed by the Governor and 6 appointed by the legislature.  Legislators could serve on the judicial review committee.  Two-thirds of the members would have to be learned in the law.

b.                  The judicial review committee meetings should be public.  Citizens should be allowed to comment on the performance of the judge.

c.                  The judicial term of office should be longer than five years (six to eight years).  This would reduce the number of review/retention hearings performed by the review committee.

d.                  In addition to evaluating conformance with canons and judicial competence, another basis for non-retention should be the failure to honor commitments made during the judge’s original confirmation process.  For example,  I do not believe that judges should legislate from the bench.  As a legislator, I want to be assured that a judge understands his role, in relation to the legislature.  While a judge may be ethical and competent, if he has failed to respect the separation of powers, the judicial review committee should hold that candidate accountable by not retaining them in office.

                                                               CONCLUSION

My differences with the recommendation of the “Ideal Subcommittee” all relate to judicial accountability.  If the public is going to give up their constitutional right to vote on judges, then the public must retain some role with respect to the initial appointment and retention of a judicial candidate.  They can best do this through their elected legislators and a public process.

Respectfully submitted,

Thomas M. Neuville

- Last Updated 10/28/03 -