The folks at Minnesota Lawyer are looking pretty prescient right about now.
On April 6th, editor-in-chief Mark Cohen argued on the newspaper’s editorial page that there needs to be some check on the governor’s power to appoint state Supreme Court justices. The table was laid for Cohen’s editorial in two earlier MinnLawyer blog posts, here and here, tweaking Governor Pawlenty for the no-process process he has employed to appoint justices in the past. Cohen chides Governor Pawlenty for “eschewing” any sort of collaborative mechanism for screening prospective justices. Pawlenty is not obliged by statute to go through the merit-selection committee when he selects appellate judges, and he has never elected to do so in conjunction with his high court picks. Unlike most of his predecessors, Pawlenty has also abjured using any sort of an ad hoc commission, even one for which he hand-picks the membership. Pawlenty has no pesky advice and consent clause with which to contend, no need to win legislative acquiescence for his selection. There are no legal or practical limitations on his discretion. He appears poised, as Cohen observes, to select Minnesota’s next Chief Justice “via committee of one.”
Three days after Cohen’s editorial appeared, Justice Stevens announced his retirement. The disclosure touched off the inevitable tempest of analysis/conjecture/exhortation/you-name-it regarding Stevens’s successor. Potential nominees are intensively vetted in the court of public opinion: short list, short list, short list. The pragmatic constraints imposed on Obama by the advice and consent requirement are measured and dissected: How much political capital can Obama afford to expend on a nomination fight? How might the looming mid-term elections restrict Obama’s options? Will the Republicans filibuster after all? It is a breathtaking outpouring but still more or less what we have all come to expect, part and parcel of a clamorous national pastime.
This time around, however, two very different selection processes are juxtaposed in a single frame. As one takes in the democratic ruckus surrounding the SCOTUS pick, one’s thoughts stray to Tim Pawlenty. Is it possible he will pick the next Chief Justice without ever leaving his desk? Has he, perhaps, jotted down the names of one or two prospective nominees on post-it notes? Will he, as Barbara Jones imagines, pick up the phone, place a quick call and, voila, it’s done?
The power of the President of the United States to select Supreme Court justices is checked and contingent. The President’s exercise of will must accommodate intense public scrutiny, procedural regimentation and a squirrelly coordinate branch. The power of the Governor of the State of Minnesota to select Supreme Court justices is unchecked and absolute. His process is invisible. He is unaccountable to the legislature. Short list? What short list? The media appears almost entirely unconcerned about the possible names, not to mention relative leadership styles, of prospective nominees.
Yes, the jobs are different; the stakes are higher in Washington than they are in St. Paul. But any state supreme court vacancy is a matter of import for Minnesotans. On this occasion, when we are talking about choosing the person who will lead the state’s judicial branch, the decision is particularly momentous. Kudos to Minnesota Lawyer for calling for reform. More kudos to Minnesota Lawyer for simply paying attention.