Swamp Water Jurisprudence: Nominating and electing judges


by Judge Dennis Challeen

When was the last time you voted for a justice of the United States Supreme Court? You voted for president, vice president, senator and representative … but never for a Supreme Court Justice. There is a good reason for this omission; our founding fathers were strong believers in democracy, but understood its limitations. They wanted three branches of government to keep each other in check. They trusted the wisdom of popular voting for members of two branches, but not the judiciary. Modeling it like the aristocracy of the British House of Lords was out of the question in a new country based upon rule of and by the “common man.”

The founders wanted impartial, fair, and unbiased judges, free of political ideology and free from worry about re-election, so they created the court free of these distractions, with justices and lesser federal judges to be appointed by the president, confirmed by the senate, and to serve for life terms.

The life terms worked well until a Salt Lake City federal judge suffered from dementia or Alzheimer’s, and couldn’t function; yet he refused to retire and sat in his office doing nothing except collecting his paycheck for years. (Congress has since fixed this problem.)


The Supreme Court almost had to invent itself; the Constitution says little about how it operates. One of its first acts in 1803 was to rule that the Supreme Court had the right to declare some acts of congress and the president to be unconstitutional — a very controversial yet extremely important decision that remains with us to this day.

Through the years there have been some rocky moments for the Supreme Court. Congress and the president have armies they can call upon to enforce their laws … the Supreme Court has none. The Supreme Court in 1832 ruled in favor of some Georgia Indians against President Andrew Jackson who taunted the court by saying, “Marshall [The Chief Justice] made his decision, now let him enforce it.” This constitutional crisis was avoided when the parties settled out of court. No one has challenged the court since. President Franklin D. Roosevelt contemplated adding up to six more justices to swing the court his way but abandoned the idea because of popular public opinion against it.

The various states have all wrestled with how best to elect their judges. New England states followed the federal lead and have the governor appoint, the legislature confirm and the judges serve a term for life. As our nation moved west with added states, the lack of legally educated lawyers, distrust of the government and formal education led to the election of laymen judges, often called “Justices of the Peace,” which still remain in several western states.

Most eastern states now require that their judges must be “learned in law” meaning from an accredited law school.

A number of years ago a television station decided to aim its cameras and follow a couple of judges unbeknown to the judges. One judge consistently left the courthouse early and went playing golf, the other stayed in the courthouse long past closing time. The intent of the TV program was to show the voters who worked hard and who did not. What the program didn’t understand was that all the judges were assigned a block of 100 cases each to handle to conclusion. The golf playing judge was a talented master at settling cases; he efficiently used his time to get adversarial litigants and their lawyers to peacefully resolve their disputes, thus quickly clearing his 100-case calendar and the judge left early; while the other judge lacked this ability and caused the parties to polarize and he spent endless hours trying cases. The other judges and lawyers in the courthouse knew what was going on but the general audience didn’t. This is an illustration of why it is difficult for voters to evaluate judges and cast a thoughtful ballot in judicial elections.

There are strong arguments over whether the general public should elect local judges. It takes some time for a lawyer to abandon thinking like an advocate and to become an experienced umpire or referee and not to allow prejudicial emotions to enter a decision. I recall on many occasions ruling in favor of unlikable people with unlikable causes because the facts and law were on the side of their unpopular cause. Judges are paid to make these tough decisions, while politicians try to duck them.

Politicians constantly try to get their names out to the public; judges are forbidden to contribute to or take part in political activity.

If you are in a group of people and the conversation is lacking, try asking if anyone can name any of the State Supreme Court Justices. Most likely you will hear none … or perhaps you will hear (now retired) Justice Alan Page, not because of his judicial accomplishments, but rather because he was a Minnesota Viking Hall of Fame football player who, as a lawyer, was elected to the Minnesota Supreme Court in 1993.


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