Musings on Judicial Races

“On average, one-half of all supplicants to come before a judge’s bench must depart angry and disappointed. But not, by that, necessarily wronged.” –Lupe dy Cazaril, The Curse of Chalion, Lois McMaster Bujold.

Possibly because of the overall heightened interest in politics going around, I’ve gotten a lot of questions about the judicial races, and how you find information about judges. So, I’m going to ramble about that a bit.

I’ll note, incidentally, that if you are super interested in the question of how judges get chosen and what the results are of various selection methods, my father is a legitimate expert on this subject and has written an actual book about it.

In Minnesota, the way we pick judges looks roughly like thismost of the time, they get appointed when someone resigns partway through their term, usually because that judge reached mandatory retirement age (which is 70, and again, this is Minnesota, not everywhere). The Commission on Judicial Selection (half of which is appointed by the governor, half by the State Supreme Court) goes through applications. If you want to be a judge, you apply to them by sending a detailed resume, up to ten letters of recommendation, and releases to let them see a bunch of stuff including, I think, your taxes.  If you make it to semifinalist, you get interviewed, and finalists are put on a list forwarded to the governor for consideration.

This process has its faults. But I generally trust it to weed out the weirdos. I think they usually do a decent job picking out people who are smart, fair, and capable. This is one of the reasons that I tend to err on the side of favoring incumbents in judicial races.

Every six years (or at the first election that occurs after their appointment), judges stand for election.

Most of the time, county judges in Minnesota run unopposed. I’ve gotten a bunch of questions about that this year — why so many unopposed judges? But it’s totally normal, and to my mind, fine. Being a judge is, at its core, a job, and not usually a particularly political job, except in the sense that your politics inform your ideas about the world.

Very occasionally there’s an open seat at election time. We have one in Ramsey County this year. Four years ago there were three open seats in Hennepin County; in one case, the guy who lost was appointed to the bench a few months later, which was great because both candidates looked awesome.

It became legal in 2010 (I think) for judicial candidates in Minnesota to seek and accept partisan endorsements. (Edited to add: okay, my father sent me the citation on this. In 2005, the U.S. Court of Appeals for the 8th Circuit ruled that states could not prohibit judicial candidates from engaging in certain partisan activities, including seeking, accepting, and using endorsements from political parties.)

When that happened, the DFL announced they would not be endorsing judicial candidates (although obviously individuals can and do); the GOP was briefly really enthusiastic about it. Then came Michelle MacDonald! This year, the GOP endorsed zero judicial candidates. (At least statewide. It’s possible that some of the local GOP branches did endorsements, or maybe they felt so burned by Michelle they’ve all washed their hands of that part of the process.)

As a judicial candidate semi-lamented to me, it’s not like judicial candidates can go around saying to people, “I want to be your judge.” (He wasn’t really lamenting this — more the fact that just as it’s hard for citizens to evaluate potential judges, it’s hard for a judge to make their case to citizens.) In terms of what you’re going to get from a good judge, all they can say is, “if you come before my bench, I will treat you with rigorous and uncompromising fairness. I will listen well. I will remember that even if this is a run-of-the-mill Tuesday to me, this may be the worst day of your life. If you commit a crime, I will hold you accountable in a proportionate way.” I want judges to prioritize the well-being of children in child custody and child welfare cases. I want them to recognize that ordinary citizens are at an inherent disadvantage in lawsuits between citizens and large organizations. Inasmuch as I care about politics, it’s because I really don’t want a judge who will look at lesbians in a custody dispute and award sole custody to the woman who gave birth because he considers her the only “real” mother; I really don’t want a judge who considers gay panic to be a legitimate murder defense. I’m sure there are Republicans on the bench who are not the sort of assholes where it even matters.

So, if you take a close look at your ballot, you have a whole bunch of uncontested judicial races and then a small number of contested ones. What to even do with these races?

All Those Uncontested Races

It is really rare that a challenger wins in a judicial race. It is vanishingly unlikely that someone would win a write-in campaign. If a Hennepin County judge gave a tiny slap on the wrist to a rapist because he was a good swimmer, in early October when he was up for re-election, I can imagine someone launching a furious write-in campaign and even winning but you would probably have heard. Like, if you ever read a newspaper, log onto Twitter, drive around town where you can see billboards…if it’s that kind of story, you’ll know.

If you see an uncontested judicial race, what that usually means is, “this judge is fine.”

If I have time, I fill in all the dots for the uncontested incumbents. If I don’t, I don’t worry about it. You really do not need to spend a lot of time and energy on these races.

Incumbent vs. Challenger

In a judicial race, I really consider it the job of the challenger to make the case not only that they are qualified, but also that the incumbent needs to be replaced.

I start by checking both websites. If the challenger hasn’t set up a website, or if their website is just “hey, I’m a lawyer, hire me to represent you,” I’m basically done.

If everyone has websites, I next look at endorsements. If the challenger has no endorsements, I’m basically done — that says to me that there’s broad agreement in the legal community that the sitting judge is fine. If the challenger has some endorsements but none of them appear to be lawyers or judges, that’s more or less the same as having zero endorsements.

If the challenger has a bunch of endorsements, especially if they look high-profile, that’s a strong indicator that there’s genuinely something going on here, and I should probably try to figure out what it is.

The reason I take endorsements so seriously: I’m not in a great position to actually assess judges. (I was on a jury once, and I can tell you that Judge Leonard Castro is awesome. The rest of them, I haven’t met.) Fairness, respectful treatment of everyone — basically, the stuff I want in a judge is what everyone genuinely wants in a judge. The lawyers, judges, former clients, etc. are in a reasonable place to assess that person’s skills and temperament.

If it’s an open seat and one candidate has endorsements from a bunch of Republicans and the other candidate has endorsements from a bunch of Democrats, I will assume that both of them are reasonably well qualified but the Democrat is more likely to bring a worldview I like to the bench, and vote that way.

Other Things I Look At

If I’m looking at candidates for an open seat, or at a challenger when there’s a compelling reason to replace an incumbent judge, I look at the person’s resume. Have they shown some professional success? (Jobs at big law firms, long stays with organizations, that sort of thing.) How much trial experience do they have? Any red flags there?  (Things I consider a red flag: job hopping. Looking like maybe he’s not that great of a lawyer. Bad reviews from clients.)

I also try Google, the same as I would for any other political candidate. Judges working in criminal court pretty regularly land in the paper because the cases they’re on get news coverage. (Although not always. First of all, if they’ve been working in Family Court or Juvenile Court, that’s rarely going to land in the paper. I just looked up Leonard Castro and found nothing, and he was definitely working criminal cases in 2016. The case I sat on the jury for was a really small-time criminal case happening between people that the public mostly just doesn’t remotely care about.)

I’ll add to this that if someone’s worked in criminal defense, their name will definitely come up as the defender of some pretty horrifying people, especially if they’ve worked as a public defender. (I just tried Googling Leonard Castro again, and found some cases from when he was a public defender.) It’s really important to recognize that this is how our system works. Criminal defendants have the right to an attorney. That means someone has got to be there to speak for them in order to prosecute. Public defender jobs are always going to be a mixed bag. A friend of a friend was defended by a public defender (A.L. Brown, in fact — currently a candidate for the Minnesota Court of Appeals). This young woman had been arrested for trespassing and burglary, IIRC, despite obviously not being the person on the surveillance video. This went all the way to trial and she was found Not Guilty by the jury, thanks in part to good work from Brown.

But if you’re a public defender (or any sort of criminal defense attorney), you will also defend people who very definitely did the thing they’re charged with doing. Because guilty people also have the right to an attorney. (Link goes to an article about the man who mass-murdered people in a synagogue on Saturday. He was arraigned today, and assigned a public defender.)

On the other hand, if the person took a job for an awful organization, that’s an excellent thing to hold against them. Doug Wardlow, the Republican candidate for Attorney General, has been trying to spin his work for the so-called Alliance Defending Freedom as just a job, ya know, and holy shit no to that line of bullshit. If you’re an in-house lawyer for a hate group, you made a conscious decision to go work for that group. (And I’ll note that you have to click “Agree” with their Statement of Faith and Guiding Principles before you can even see their job postings so yeah, pull the other one, Doug, you lying bigot.)

Super obvious red flags

Sometimes just looking at a candidate’s website will make it clear they’re not the sort of person I want in a judgeship. If they’ve got religious symbols on their website, that’s a bad sign. If they’re talking about a “second, unwritten constitution” (like lying bigot Doug Wardlow) that’s a super bad sign. If they’re emphasizing their religiosity in any way, honestly, that’s a bad sign, unless it’s something like their bio mentioning that in addition to being a judge/lawyer they play the violin and bake casseroles for funerals at their church, Shady Oaks Church by the Lake. (If someone names their church, I’ll usually look it up. If it’s a very conservative church, that’s also a red flag, although I was chatting with a friend recently about a church that opened in her neighborhood that seemed hair-raisingly conservative to her. I looked it up and it actually looked pretty mainline to me.)

Conservative talking points are a huge red flag. So is “WE THE PEOPLE” in all-capital letters.

You’re allowed to follow your own biases

If you had a personal experience with a judge (because you were sued, because you were a victim of a crime or charged with a crime, because you got a divorce…) and you think that judge sucked you can absolutely vote against them. You can tell all your friends to vote against them. You can launch a write-in campaign for your favorite worthy person with a JD and tell all your friends to vote for that person instead of the unopposed asshole who’s up for re-election this year.

I mean, you probably don’t need my permission to do this, but if you do? You have it. (Unless the judge you hate is running against Michelle MacDonald, in which case, you’re going to have to suck it up because Michelle MacDonald would definitely be worse.)

 

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