Q & A
Copyright (c) 2000 Burton Randall Hanson
(The first set of questions was submitted to me by the Minnesota Newspaper Association; the second, by the editors of Minnesota Lawyer. The answers are mine. The mascot, "Mathilda," is a best friend.)
Minnesota Newspaper Association Questions and Answers
1) What legislation is needed in the next legislative session to make the courts work better?
These words are engraved in marble at the capitol: "To embarrass justice by a multiplicity of laws, or to hazard it by reliance on judges, are the opposite rocks on which all civil institutions have been wrecked" (Johnson). We are overlawyered, overlitigated, overlegislated. We have an ongoing crisis of court delays, high legal costs ("even lawyers can't afford to hire lawyers"), and a poor imitation of justice. Our court's response is to regularly ask legislators for more money to throw at problems and continue its failed policies of hiring more judges, clerks, administrators, programmers. More legislation is not the answer.
2) Should judges be endorsed by political parties?
The "politically correct" answer, at least among lawyers, is "No." I think there's room for reasonable people to disagree. Ultimately, under the First Amendment, the decision is for each political party. Newspapers are free to endorse judicial candidates. So are political parties. The judges of the supreme court, by adopting a rule governing their own elections, have attempted to prevent candidates from seeking or relying on political party endorsements. Unlike my opponent, I have subjected my campaign to a stricter, self-imposed rule: I'm not seeking or accepting endorsements or contributions from anyone -- lawyers, politicians or any other individuals or groups.
3) Are judicial candidates too restricted with regard to the issues they can comment on?
The only prohibition is against prejudging issues that might come before the court. The fact is, I wouldn't know my particular views on an upcoming case until I'd personally read the briefs, read the record, researched the law, heard the arguments, listened to my colleagues, and subjected my tentative views to the test of writing. The real problem, given my self-imposed tight-fisted budget and the length-limits on answers to questions like this, is in publicizing my views on the many issues I've identified. Voters are invited to visit my website, WWW.VoteHans.Com, and read my campaign journal and detailed position papers.
4) Briefly summarize your personal background and qualifications.
I am a native of Benson, Minnesota. I was co-valedictorian of my high school class. I received my undergraduate degree from the University of Minnesota and my law degree from Harvard Law School. I worked as deputy commissioner of the supreme court for 26 years. Before that I was law clerk to the late Justice C. Donald Peterson for two years, and law clerk to the civil special term judges of Hennepin County District Court for one year. I am author of five published analytic essays on former supreme court chief justices and associate justices. I have two adult children.
Minnesota Lawyer Questions and Answers
Q - Why are you running for judicial office? With lots of judicial seats up for grabs this election season, why did you challenge the particular judge whom you are running against? A - It is obvious many lawyers and politicians supporting my opponent do not like our state constitutional provision providing direct election of judges. They prefer, instead, the de facto gubernatorial appointment system that has arisen, whereby voters rarely get a chance to select their judges. One reason I am running is I think the system envisioned by the drafters of our constitution is the best of the alternatives available and that it needs to be given a chance to work as envisioned.
The drafters envisioned that judges typically would be selected by the voters, who would have a choice among qualified candidates. The constitution provides that judges "shall be elected by the voters..." to six year terms. Minn. Const. Art. 6, Sec. 7. But judges, being lawyers, long ago discovered a way around the contemplated system. The "loophole" results from the provision that if a judge resigns, the governor is to appoint a qualified person "to fill the vacancy until a successor is elected...for a six year term at the next general election occuring more than one year after the appointment." Art. 6, Sec. 8. Instead of announcing he or she will not seek another six-year term, thereby allowing qualified candidates to seek election by the voters, a judge typically resigns or retires before the six-year term being served expires, thereby creating a vacancy for the governor to fill. The person appointed to fill the vacancy, typically from the governor's party, is just that, not a "successor" as the Constitution uses the term but simply someone who fills a vacancy "until a successor is elected...at the next general election...." Nonetheless, for various reasons, it is rare for a lawyer to run against either an appointee who seeks a six-year successor term or an incumbent seeking re-election. On the other hand, in the rare case when a judge simply announces an intent to leave office at the end of the six-year term, it is common for many candidates to file, as in 1966 when the late C. Donald Peterson emerged from a multi-person field of prominent candidates to succeed the outgoing Justice Thomas Gallagher.
I am running also for the same reason my great-grandfather, Hans R. Hanson, a Norwegian immigrant, ran for and was elected a county commissioner in Swift County 100 years ago, in November of 1900; for the same reason my two grandfathers served as county commissioner and city council member respectively; for the same reason my maternal grandfather's brother served in the legislature as a Farmer-Labor representative and ally of Governor Floyd B. Olson; for the same reason my father served on the school board and my mother was a Republican activist and early supporter of General Eisenhower in 1952; for the same reason I attended law school and then worked for nearly 30 years in the judicial branch of government as a trusted aide and adviser at a wage below that paid in the private sector by the big law firms. In short, I was taught in family, church and school, both by precept and example, that from those to whom much is given, much is expected, and that serving the public interest -- in whatever capacity, as good citizen, as public employee, as candidate, as public official -- is both a gift received and gift repaid.
Someone asked me why I didn't run against one of the recently-appointed sitting associate justices seeking retention rather than my opponent. He suggested that my opponent is not as vulnerable, is maybe unbeatable. Perhaps he is right. It is true that in the past others who have challenged sitting judges have targeted those thought to be most vulnerable, for example, those who were approaching mandatory retirement age of 70 who would be able to serve only part of the six-year term. But "winning," as that term is conventionally defined, is not my main goal.
I am running because I care about our system of justice and because I have some fundamental differences with my opponent, whom I respect, about the proper role of a chief justice as well as about the proper role of the supreme court. Frankly, I feel "called" a) to articulate those differences, something I will do calmly, quietly, carefully, and fairly in the course of the campaign, and b) to give the voters, whom I trust more than bar leaders seem to, the kind of choice contemplated by the drafters of our constitution, the kind they rarely have been given in past judicial elections.
Q - What in your background would you point to as making you qualified for the judicial seat that you seek? Why? A - I do not enjoy touting my own qualifications, so I simply will rely on the words of one of my judicial mentors, the late Justice C. Donald Peterson, whom I served as law clerk for two years and worked with for many more as Deputy Commissioner, up until his retirement from the court. In using these words, which he wrote near the end of his life, I do not intend to imply that he necessarily would be supporting me if he were alive. That would be presumptuous. I merely use his words as he expressly told me I could use them, specifically, if I ever sought judicial office. He wrote, in a discussion of his appreciation of all the many men and women who served as his law clerks:
"Mr. Hanson, who was with me [as law clerk] for two years and has since been an associate court commissioner, specializing in the review of criminal cases, was outstanding among all of the other outstanding clerks and against whom the clerks all knew they were measured. He is fully qualified by intellect, temperament, personality, and experience to be a judge or justice on any of our courts."
The Professional, Public and Judicial Career of C. Donald Peterson at 165 (MN. Justices Series No. 4, 1987)
Q - What are some of your past accomplishments (obstacles you have had to overcome, etc...) of which you are most proud? A - The late Jacqueline Kennedy Onassis, when asked what was her proudest accomplishment, replied, "I went through some pretty difficult times, and I kept my sanity." Any accomplishments I would list as mine would be of that nature, private.
I have never been a believer in the pseudo-religion of seeking after personal accomplishments, the kind one might list on a resume, but then I never have been an ambitious resume builder. Speaking generally and without intending indirect reference to anyone in particular, I am not a joiner or glad-hander or turf-builder or headline-seeker. Nor do I believe in the cult of "Leadership." In my experience, many people who parade under the banner aren't very good at it. They were told they were "leaders" in high school and they believed it ever after.
In any event, in my experience, each judge on an appellate court is pretty independent, unlikely to be easily led by anyone but likely to work cooperatively with everyone. The chief shouldn't think of himself or herself as more important than the other judges. At most, the chief is, as others have said, "first among equals." Ideally, a chief's accomplishments should be the collegial accomplishments of all the judges -- all of them working together, yet independently, doing the people's work, not giving a darn who gets credit. A chief who is overly ambitious after personal "accomplishment" or who views the court as "my court" or who tries to be a "celebrity super chief" or who is interested in change for change's sake eventually will be chastened, if not sooner, then later.
Q - Explain in detail the experience you have had in dealing with the court on which you wish to sit. (E.g., number and type of cases brought, years of practice before that court, etc...) A - A now-former member of the court said of me in a public speech in August 1997 that he "never ha[d] met anyone who knows so much criminal law," that I "ha[d] read more criminal court records than any person in this state," and that I am "just plain fair." (Transcript made from audiocassette recording.) I assisted members of the court and the court commissioner in other areas of the law, as well, during my over twenty-eight years at the court. I could say more, but, for now, I'll leave it at that.
Q - What is your view of the role that courts should play in society? A - Robert Frost wrote a poem titled "How Hard It Is to Keep from Being King When It Is In You and the Situation," which the narrator concludes is "half the trouble with the world," or "more than half." Some judges in our country, too convinced of their own goodness and wisdom, find it impossible to resist the temptation to be "King" when they feel it is "in them and the situation." Or they find it impossible to resist being Preacher or Legislator. But as Justice Felix Frankfurter said, "If judges want to be preachers, they should dedicate themselves to the pulpit; if judges want to be primary shapers of policy, the legislature is their place." Lack of self-restraint in the exercise of judicial authority, which is nothing new, stems in part from a lack of understanding of the importance of the Founders' structural design of our government, including the relationship envisioned between the federal government and the states, the relationship of government and citizen, the relationships of the judicial branch with the executive and legislative branches, the intricate web of checks and balances.
Judges have played a crucial role in enforcing the well-known and cherished constitutional rights that protect each of us against majoritarian excesses and abuse by legislatures and by governmental agencies and functionaries. Judges must continue to play that role, while at the same time recognizing, as Justice Holmes did, that "legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." While judges play a crucial role in enforcing our rights as individuals, judges do not have authority to act as substitute legislators. Mary Ann Glendon of Harvard Law School points out, and I agree, that when a judge acts as legislator and "sets aside an action of the political branches through freewheeling interpretation, the American experiment in self-government suffers a setback. Political skills atrophy....Citizens with diverse points of view lose the habit of cooperating to set conditions under which all can flourish. Tolerance suffers as communication declines." I agree with Glendon further that we need to re-emphasize what she calls the more traditional "ordinary" day-in and day-out judicial virtues -- virtues such as those catalogued by Judge Richard Posner and endorsed by Glendon: "self-restraint, self-discipline (implying submission to the authority of statutes, precedents, etc.), thoroughness of legal research, power of logical analysis, a sense of justice, a knowledge of the world, a lucid writing style, common sense, openness to colleagues' views, intelligence, fairmindedness, realism, hard work, foresight, modesty, gift for compromise, commitment to reason, and candor."
Q - An important aspect to a judge's duties involves the administration of justice. How could the court system improve its performance in carrying out this function? A - Lawyers and judges have responded to the litigation explosion with, as Judge Posner put it, "all the imagination of a traffic engineer whose only answer to highway congestion is to build more highways, or of a political establishment whose only answer to increased demands for government services is to print more money." During my campaign, I intend to articulate, in some detail, possible changes in the way the supreme court and the state court administrator manage the state court system. Miguel de Cervantes, creator of the archetypal Don Quixote, wrote that one should "make it thy business to know thyself, which is the most difficult lesson in the world" and added "from this lesson thou will learn to avoid the frog's foolish ambition of swelling to rival the bigness of the ox." It is worth inquiring periodically whether our institutions know themselves, whether our institutions in a metaphorical sense have become "too big" and too centralized and have "lost their souls." I have always believed that the supreme court exists primarily to decide appeals. I intend to discuss whether our court has lost sight of its primary role and is devoting too much of its time and effort to other matters, including administration of the trial courts, public relations, and other matters -- i.e., I will discuss whether the court has "taken on too much" and perhaps "spread itself too thin."
Serious problems exist in many of our courts. For example, although the late Chief Justice Peter S. Popovich (with whom I was privileged to work) repeatedly said, as others before him did, that "justice delayed is justice denied" and although he worked tirelessly to minimize delay, many litigants are not obtaining timely resolution of their disputes. This is more true in some districts than others. Delays are costly, sometimes extremely so, in human terms and economic terms. I am not convinced that throwing more money at problems like this necessarily helps solve them. In any event, as the campaign progresses, I am going to be speaking "straight ahead," addressing problems like this and proposing solutions.
Q - If you were to be elected, what do you envision would be the most difficult challenge of your new job? Why? A - I intend to address serious concerns that I share with many lay people, and indeed many lawyers, about the current state of the legal profession. On May 24 of last year during one of her public appearances, in St. Paul at Landmark Center, my opponent said, "I want to tell you that I am so proud of the Minnesota Bar, the lawyers in this state. I cannot tell you....I don't think we have to apologize. They are doing so much. This is not an issue or a problem." (Transcript.) I disagree, and I am not particularly proud of the profession.
While the supreme court currently has the primary ultimate responsibility of regulating the profession, it is an open question whether the court is "up to the task." As I explain elsewhere (Endorsements & Contributions), my campaign has not sought and is not accepting contributions or endorsements from any individuals, interest groups, political parties, or present or past elected officials; this includes lawyers. One who relies heavily on endorsements and contributions by lawyers in particular risks creating certain negative perceptions, fair or unfair. By refusing all endorsements and contributions, I have made it clear that I don't owe anyone, lawyers or others, anything.
One of several matters that are of concern to me is the perception, justified or not, among solo practitioners and members of small firms that the disciplinary aspect of the regulatory system is biased in some way in favor of lawyers practicing in larger firms. To recognize that this perception exists is not to say that the perception is justified or that the Board of Professional Responsibility and its Director, whom I respect, are not doing a good job. In any event, I believe a perception such as this should not be treated lightly. I'm also concerned even more about the issue of the growing cost of legal services and whether value is given for value received. Someone whose name I can't recall quipped that "even lawyers can't afford to hire lawyers." If the court and the profession can't do a creative, effective job of addressing this serious concern, as well as other serious concerns, then the pressure for a different, more independent system of regulation may increase.
Q - Are you in favor of the current restrictions on judicial campaigns as expressed in Canon 5? A - I am not going to address, at least directly, any of the restrictions imposed by Canon 5 that are the subject of litigation by others, with whom I have no connection or acquaintance. However, in the position paper I wrote titled Endorsements and Contributions I explain why my campaign is not soliciting or accepting any endorsements or contributions and why I voluntarily intend to conduct, by myself, as close to a zero-budget campaign as possible, with maximum $5,000 cap on expenditures.
Q - What (that you have not expressed in your answers so far) would you most like the electorate to know about you and your campaign for a judgeship? A - There appears to be an unwritten, implied, but well-understood agreement among the governors (the current one, whoever that happens to be at the time, and former ones), bar leaders, many lawyers, and political leaders to support all judicial appointees who are opposed in judicial elections subsequent to their appointment. The parties to the agreement typically sign on, often in advance of the filing date, to support the appointee in the election without regard to the relative qualifications of appointee and any opposing candidate(s). That is their privilege.
Frankly, were I an appointee, I would not want to be the beneficiary of that kind of automatic "my judge, right or wrong" support. Nor would I want lawyers with large law firms -- or anyone else, for that matter -- running my campaign or soliciting endorsements and financial contributions from lawyers and politicians on my behalf. A judicial appointee should be independent of all that, particularly when the appointee is well-known and the challenger is an unknown challenger whose campaign has foresworn seeking or accepting endorsements and contributions.
How a challenger runs his or her campaign tells the voters, the ultimate selectors, what kind of judge the challenger will be, if elected. I believe my campaign will show the voters that I am totally independent of politics and totally independent of the organized bar, that I am not afraid to stand alone if need be on matters of principle, that I know the proper role of judges and courts, and that I trust the good judgment of Minnesotans to decide who their judges should be.
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.