The Daily Judge

BURTON RANDALL HANSON FOR CHIEF JUSTICE MINNESOTA SUPREME COURT

"Running for Justice" - A Candidate's Daily Campaign Journal

About this journal. One summer during law school I visited my hometown library (in a Carnegie-grant building that unfortunately was razed a few years ago) and checked out a copy of Henry David Thoreau's Walden and read it for the first, not the last, time.

That led to Thoreau's Journals, of which I have a complete 14-volume paperback set, and to the works of my favorite essayist, journalkeeper, and thinker -- the profoundly-influential, great human being, Ralph Waldo Emerson, who was Thoreau's contemporary in Concord and Justice Holmes' father's friend. Emerson's influence on some of my favorite writers and thinkers (William James, Robert Frost, and poet-lawyer Wallace Stevens, to name a few) and, yes, judges (Holmes and Frankfurter, to name two) is easily traced. I've been keeping a journal ever since I returned to law school in Boston that fall. In it are old family stories told me by my parents, reminiscences of a great childhood, descriptions of my life as a law student, stories of ups and downs, an ongoing account of my experiences as privileged father of two wonderful children, and stories about the people I worked with and cared about in nearly thirty years as an aide to the Minnesota Supreme Court, the institution to which I've devoted almost my entire professional life. This "campaign journal" is but a continuation, in a public and therefore less intimate style, of that journal. Herewith, the journal, with the most recent entries first....

11.22.2000 - One of the nice things about losing the election and no longer being a candidate for judicial office is I'm free to say what I think, without worrying about whether I'm violating the court's canon restricting the free speech of candidates for judicial office. What am I thinking right now? This: the decision of the Florida Supreme Court released Tuesday night reminds me of the old Max Shulman story, in one of his columns for college newspapers, about the abandoned baby boy who was raised by a pack of dogs for a time, before being found by some humans and raised in a family. The boy was a bit slow in developing his language skills but eventually caught up with his peers and did so well as a student that he was named valedictorian of his high school graduating class. On graduation day his parents proudly took pictures of him as he put on his cap and his robe and left the house. They assumed they'd see him at the ceremony a short time later. Tragically, while on his way to the ceremony he was killed -- run over by a car which he started barking at and chasing.

The seven Democratic appointees serving on the Florida Supreme Court at least looked like judges on Monday as they entered the court room wearing their robes, the external garb of fairness. But as they started asking questions, I began to sense that they weren't likely to produce an opinion that would be anything but political. And I was right. Admittedly, the opinion looks on the surface to be a judicial decision rendered by a court of law. But once I read it to myself, I could only hear the sound of a chorus of seven black-robed barking dogs chasing their prey. They may catch their prey, but what are they going to do with it when they catch it? But I'm being too tough on -- I was going to say "too tough on judges," but found myself tempted to switch that to "too tough on dogs." Instead, I'll simply say that Learned Hand and Felix Frankfurter had it right. Those who want to be legislators and amend or revise statutes or be political should run for the legislature.

Truly, we expect too much if we expect lawyers like my old law school criminal law prof, Alan (Morton) Derschowitz (I was there the first day he taught and he hasn't changed much since), and politicians-in-robes to settle political disputes fairly. Dirk Johnson's story in today's New York Times quotes an ordinary Democratic voter in Chicago as saying, "I had no idea that lawyers and judges were going to have so much influence on this thing. That's not how our political process is supposed to work." He's right, of course. Maybe the only fair way to settle the deadlock, which bears all the signs of random voting by the entire country, is not to rely on hired-gun lawyers and politician-judges but for the candidates to agree to use that tool used so often by teachers of statistics to demonstrate the principles of randomness, the flip of a coin. :-) The only other option I can think of might be to revive an ancient procedure to settle disputes that was used before the institution of trial by jury developed, trial by combat -- put the two contenders into one of Verne Gagne's rusty caged AWA wrestling rings with Governor Ventura as referee. But first there'd be the problem of figuring out who would pay the guv his fee.

Or maybe we should just resign ourselves to the fact there isn't going to be a fair solution, only a political solution to what is, after all, a political crisis. Given that one of the associate justices who was elected by a big margin to a full term here in Minnesota, Jim Gilbert, graciously called his defeated opponent, Greg Carlson Wersal, "a three-time loser," it is perhaps expecting too much to expect much class from either Vice President Gore or Governor Bush, neither of whom wears a robe or pretends to be anything other than a politician.

11.19.2000 - A well-known somewhat-cynical, not-entirely unjustified definition of "judges" is "politicians in robes." "Imagine," goes the Beatles song, "it's easy if you try...." I say, "Imagine if those seven supreme court judges in Florida hearing the election dispute tomorrow were not 'Democratic judges' appointed by a Democratic governor but 'just plain judges,' of no known political leanings selected initially by the voters in nonpartisan elections conducted with no endorsements/contributions by politicians or lawyers or interest groups?" Seriously, as things stand, if the judges vote in Gore's favor, the Bush folks will be able to claim that the decision at least appears political. But the Gore folks perhaps should be worrying that the judges might be so worried about appearances that they will go out of their way -- maybe too far -- to appear to be nonpolitical. Politicians in robes sometimes convince themselves they're being judicial and fair if they simply vote against the grain of their own personal preferences. I think if I were Gore or Bush, I'd prefer to have the case decided by my imagined court.... My guess is that if Rudy Perpich were alive, he'd "second" what I just said. Does anyone recall the Minnesota Supreme Court's decision in the election case that led to the Rudy Perpich-Arnie Carlson election contest, which Carlson won? Rudy felt betrayed -- I think, understandably so -- when his friend and appointee, Sandy Keith, voted against him in the case. Keith's decision was perhaps courageous but, or so I have always felt, wrong -- wrong without regard to whether it was correct on the merits. In my opinion, Keith should have recused.

11.18.2000 - Every open-minded person -- Catholic or non-Catholic -- who is interested in criminal justice issues should read the recently-released "Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice." Click here for direct link to the complete report.

11.13.2000 - I have been amazed at the continuing traffic on my web site since I ended my "campaign" a week ago today - approximately 4,000 "hits" since then. I will begin posting to my new sites -- LawAndEverythingElse.Com and BurtLaw.Com -- in the next week or two. Thank you to everyone for your kind words and support. I must admit I've been surprised by the number of you who have become familiar with me from the web site and who have approached me on the street and introduced yourself. I'm also amazed at the number of old friends who have reappeared in my life as a result of the campaign. Vince Lombardi certainly had it wrong. Winning is not the only thing. Moreover, as I said during the campaign, sometimes winning disguises herself as defeat. I tried to conduct a campaign focused on some issues that I feel are being ignored. I like to think I succeeded in that. I remain interested in these issues, including the pressing need for reform of the legal profession, the need to change our law mandating retirement of judges at age 70, the need for the governor to appoint (or the people to elect) more experienced people to the supreme court (especially people with appellate experience on the court of appeals), the need for true openness by the courts, the need for greater accountability (including fiscal accountability), the need for divorce reform, the need for reconsideration of judicial election campaign rules, the need for the press to get its act together and start providing voters with real information about judicial candidates, etc. I will continue to stress these issues, among others, in my new web publications. I welcome tips and suggestions.

11.10.2000 - My "$100 campaign" ended 11.06, the election is over, and, in the public interest, I have magnanimously decided not to demand a recount. I was planning on "taking down" this web site at the end of the week. However, I've been asked to leave it up a bit longer so that some people studying use of the web in campaigns will have access to it. Incidentally, I soon will be resuming work on my other projects, including two new...law-related web sites, LawAndEverythingElse.Com and BurtLaw.Com...For the information of all those "Burt-Groupies" and "Mathilda-the-Wonder-Dog-Groupies" who have asked, the way to "save" a web picture is to "right-click" on the picture and then "left-click" on "save image as." :-) On another note, I received a nice e-mail on 11.08 from Rick Solum, co-chair of C.J. Blatz's campaign committee. Much appreciated.

11.08.2000 - In the first half of the 20th Century a barber in my hometown named Ben Leitte used to say after every election, regardless of who won, "Vell, ve von." And so it continues: Ve von. Congratulations to my worthy opponent on her impressive victory. Is this a great country or what?

11.06.2000 - Election eve. Public thanks, win or lose, to my friend of 30 years, Marlene Kane, who helped my mentor Justice C. Donald Peterson get elected in 1966, who was his secretary when I was his law clerk from 1970-72, who suggested to him that the court hire me to work as one of the commissioners when the office was established in 1972, who has been my steadfast and wise colleague and friend from Day One. Thanks also to my good friends and neighbors Tim and Lois Young, who have shown me steadfast kindness in good times and bad. And thanks to all the others, my mom and dad and brother, my ex-wife (who suggested in 1969 I apply to be a law clerk at the court), my kids Jennifer and Erik (who have blessed my life beyond belief), Mathilda the Wonder Dog (my campaign mascot, who has received mention in the press and even her own e-mail "fan mail"), family and friends, past and present -- people whom I have loved (and thus always will love) who are always in my prayers and always will be, from Benson, from S.M.U., from the U. of M., from Harvard Law, from the Court. And this bit of business, from an e-mail I sent today to Mark Cohen, Editor of Minnesota Lawyer: "Hi, Mark. Just a word to say I appreciate the professional, fair, extensive way you've covered the campaign. I think you're the only editor of any newspaper who can hold his/her head high in that regard. You're obviously both a good lawyer and a good journalist. Blessings & thanks. BRH" And with that, "the campaign," if you can call it that, is over. :-)

11.02.2000 - If nothing else, my "$100 campaign" is proving one can get a lot of "bang" for a buck. My web site "hits" are way up. In September it had 9,000+ "hits" total. Lately, it's been averaging over 1,000 a day. The most it's received is 5,417 in one day. Thanks to everyone who is taking the time to consider my views, and thanks for the letters of support.

10.30.2000 - The weekly issue of Minnesota Lawyer dated today reprints, in full, my position paper titled "Judicial Independence and Accountability" and a response from my opponent's campaign spokesperson, Rick Solum, of the Dorsey firm, the state's largest law firm. Solum says he's "mystified" by my views. Read my paper yourself, especially the section on my cost-cutting ideas (click here), and then let me know [e-mail address provided no longer exists] if you are mystified by anything I say. I think it's all pretty clear. I think my journal entry dated 10.22.2000, below, will also not only interest you but be clear to you. Thanks for considering my candidacy. I really appreciate it. :-)

10.22.2000 - What's the difference between judicial "outreaching" and "campaigning"? And who pays? And is the court web site a de facto campaign site? And what about joint campaigning? These are questions that popped into my mind, first, on reading some recent news clips about joint appearances by my opponent and a colleague, an associate justice who is also seeking election to a full six-year term on the supreme court, and then on visiting the court's official web site.

The online edition of one newspaper, under the heading "Judicial elections," reports on a joint appearance in a southern Minnesota city on Monday, September 18 by the two on a "campaign swing through the region." The two are quoted as saying that "the biggest asset either one of them would provide voters is experience, and between them they have plenty." Both apparently emphasized the importance of judicial independence and keeping partisan politics out of judicial elections.

The online edition of another newspaper, under the heading "Justices go to school," reports that the two spoke in a Lake Region school on Tuesday, September 20 "as part of their community outreach efforts to inform citizens about the court system" The two also spoke at a noon Rotary club's luncheon.

The online edition of a west central Minnesota newspaper published separate articles describing joint campaign appearances by the two, saying that each is "traveling around the state with [other] Supreme Court justices trying to put faces with the names you will see when voting in November." The article described a stop in Willmar as "one on a trail of stops including Brainerd and St. Cloud, addressing schools and service clubs about the role of the judiciary system in Minnesota."

All pretty innocuous, right? I suppose so. One question I posed to myself on reading these stories was: Are these campaign appearances or official appearances? I thought at first these visits are rather obviously campaign appearances, whether they are actually called "campaign appearances" or instead are given the euphemism "appearances as part of their community outreach efforts to inform citizens about the court system." "That's fine," I said to myself. "Presumably my opponent is reporting the time away from the office as vacation time and not collecting pay for time spent campaigning and not seeking reimbursement for travel and entertainment expenses connected with these joint campaign trips. No problem if that's true."

One problem I still had, though, was that these trips are pretty much indistinguishable from many other out-state visits by my opponent and other justices over the last two years that have been presented as part of the court's "community outreach" efforts. See, for example, descriptions easily obtainable on the internet of the "spring tour" of southwest Minnesota by my opponent and one of the other justices who is seeking election to a six year term. That "tour" was featured prominently on the court's web site and yet, near as I can tell, consisted of appearances not significantly different in content or substance. And that left me puzzled.

What confused me further is I just logged on the court's taxpayer-supported web site and was a bit surprised to see a big picture of my opponent with some school kids taken during the court's holding of oral arguments in St. Cloud and descriptions of other out-state visits (with another justice seeking a six-year term) as part of the "chief justice's fall tour." These visits are all apparently deemed "official visits" by my opponent and the court employee who serves at the pleasure of the court and runs the court's web site. It is true that this is nothing new, that the site has heavily publicized my opponent and her activities and decisions ever since she ascended to the chief justiceship (witness my opponent's decision, featured prominently for quite some time earlier this year on the main page of the court's web site, in the controversial special matter involving the attempt to recall the current governor, who is one of the many politicians who has endorsed her in her campaign). The difference is that now we're in the midst of a campaign. I urge you to visit the site and to read the many detailed press releases regarding these various outstate visits prepared by the court's resident "p.r." or "court-information person" concerning my opponent's activities. What to make of this? About all I can say is -- as a voter, taxpayer, and candidate -- I'm honestly and sincerely troubled and confused. Maybe the recent campaign trips I talked about at the outset were not just campaign trips but also "outreach" trips. But then, one having trouble knowing what is "outreaching" and what is "campaigning" might ask, "Bearing in mind everything that's happening now, don't the prior 'community outreach' trips made over the last couple years arguably appear, at least in retrospect, to have been a mixture or combination of both 'outreaching' and 'campaigning' -- i.e., trips and speeches and appearances paid for by taxpayers but made partially as a precautionary immunization against any possible election challenges?" I simply don't know what to say to this. I don't make any charges and I'm not going to file any complaints with, or ask for an inquiry by, the campaign ethics folks at the Minnesota Board on Judicial Standards about any of this. In fact, the whole idea of some board trying to regulate who says or does what during a democratic campaign troubles me. I merely ask questions because I've been questioning the "outreach program" all along in my campaign position papers and in this campaign journal. I'm assuming my opponent is doing everything consistent with the rules and the interpretations thereof by the ethics folks, even if I personally wouldn't be comfortable doing them if I were in my opponent's shoes. If I were in her shoes, e.g., I would not allow the court's taxpayer-supported official web site to display my picture or to feature favorable stories about my public appearances, nor would I use the court's "p.r." person (does the court really need a "p.r." person?) to send out press releases about any of my personal appearances, even if I felt that they were "official." But then, as I've been saying elsewhere on this web site for some time, I guess my opponent and I see a number of things differently, and maybe that's one of many reasons why we have contested elections and will continue to need them.

The other question that troubles me is "What about joint campaigning?" The court's own Canon 5 says that a judicial candidate, including a sitting judge, "shall not...publicly endorse another candidate for public office" or "publicly oppose another candidate" (except, of course, the candidate's opponent). As stated in Patrick M. McFadden, Electing Justice: The Law and Ethics of Judicial Campaigns 95 (published by the American Judicature Society and mailed to me shortly before I attended a seminar on the ethics of judicial campaigning in August at the Minnesota Judicial Center), "Joint campaigning also raises the specter of improper endorsement" by one judicial candidate of another candidate. Hmmm. Well, again, I'm presuming "the Board" must have made an exception for the kind of joint campaigning that my opponent has been reported doing, if in fact what she's been reported doing is actually "campaigning." Perhaps it isn't "campaigning" if it is called "outreaching" or if it is mixed with or combined with that which is called "outreaching."

What to make of this? Well, it's probably best that we not question things like this. Similarly, it's probably best not to ask why political party endorsements are bad but endorsements by partisan politicians aren't deemed bad. See, my position paper titled "Judicial Independence and Accountability." Click here. Things like this perhaps are the way they are because, well, because they are the way they are. As Kurt Vonnegut, Jr., might say, "So it goes."

10.09.2000 - I am asked questions -- e.g., this one recently: how do I stand on gun control -- pro or con? My basic answer to this type of question: I'm not running for the legislature and I don't pre-judge cases that might come before the court if I'm elected, including cases requiring interpretation and application of a statute or a determination of a statute's constitutionality.

"It's October," a different voice asks, "if you can't tell us about that, at least tell us how you stand on pumpkins." Answer: one doesn't stand on a pumpkin. But, as Thoreau suggested, one can sit on one, and a pumpkin of one's own is better to sit on than a velvet cushion crowded with others. My motto is: "Every kid should have a pumpkin to sit on, just as mine did not so long ago."

10.07.2000 - There is an interesting article by reporter William Glaberson in today's New York Times headlined "Court Rulings Curb Efforts to Rein in Judicial Races." Not surprisingly, to me at least, the article reports that a number of recent court rulings, by state and federal courts, have said that the First Amendment prohibits "many of the new efforts" to curtail campaign speech. Justice Oliver Wendell Holmes, Jr., said that "experience" is "the great teacher." As I have come to have first-hand experience with the Minnesota Supreme Court's experiment in restricting speech in judicial campaigns, I grow less impressed with the court's effort and more wary of the whole business. I worked for the court for more than 28 years, 26 and a half of them as deputy commissioner, and learned a thing or two about speaking and writing in a judicial manner or judicious way. And yet, even I find it difficult to fathom the operational meaning of some of the court's restrictions -- that is, how the restrictions apply in practice. Perhaps there is something to be said for the attempt, and I don't doubt the judges who approved the restrictions, including my opponent, acted in good faith. But each of us has feet of clay and each of us has blind spots. I submit that in this instance the court somehow got itself involved in the business of trying to rein in democracy.

By the way, this isn't the only coverage the general subject of judicial elections is getting. The cover of a recent issue of The American Bar Association Journal shows some chess pieces and this headline: "Who Really Controls the Judge Selection Game? -- Politicians Make the Moves, and the Voters Are Only the Pawns." One of the not-so-startling facts in the article is that despite our constitutional provision of direct election of judges, 89% of Minnesota's judges "receiv[ed] their black robes from the governor," the highest percentage of any of the 11 states with judicial elections whose numbers were examined. The article describes the way direct elections are avoided in Minnesota and other states whose constitutions provide for election of judges -- by judges retiring midterm so that the governor gets to fill the vacancies by appointment. "When election time rolls around [in these states], challenges to appointe[es...] are...rare," not surprising because, as the article states elsewhere, "the conventional wisdom [is] that lawyers who challenge sitting judges commit professional suicide." Seth S. Anderson, the Director of the Hunter Center for Judicial Selection at the American Judicature Society -- which is not noted as a supporter of direct election of judges -- describes the midterm-retirement+gubernatorial-appointment system that has developed in states that envision election of judges as "a huge patronage scam" that "always has been and always will be as long as that system exists."

I personally wouldn't state it so baldly -- as a "huge patronage scam" -- at least with respect to Minnesota, but I have expressed my opinion that the system as it has developed in Minnesota is not what the drafters of our constitutional system of direct election envisioned. I also can't bring myself to be so pessimistic as Mr. Anderson: I believe that if more good lawyers are bold enough to step forward and, as the article says, risk "commit[ting] professional suicide," the system as envisioned -- direct election of most of our judges rather than gubernatorial selection (typically of political party members) -- will work. I base my optimism on two things: a) I trust the intelligence of the voters. As Thomas Jefferson said, "If you state a moral case to a plowman and a professor, the farmer will decide it as well, and often better, because he has not been led astray by any artificial rules." I believe this because I have plowmen in my recent ancestry and have known my share of professors. b) The voters have demonstrated, on those relatively rare occasions they have been given a choice, good judgment in their selections of judges. It was the people, after all, who (s)elected some of our finer judges, among them, Luther Youngdahl (who later became Governor and then was appointed a federal district judge by a President who belonged to a different political party), C. Donald Peterson (who was a mentor of mine), and Alan Page.

Copyright (c) 2000 by Burton Randall Hanson - Prepared & published by candidate on his own behalf and at his own expense. Candidate may be reached by e-mail at BRH@CampaignWebSiteURL or by mail at address listed on Secretary of State's website.