Not completely lost in the historic news last week that the first person of color would lead the Minnesota Supreme Court was another appointment with more political overtones.
While Gov. Tim Walz said he would appoint current associate Justice Natalie Hudson to replace retiring Supreme Court Chief Justice Lorie Gildea, the DFL governor also named his recently departed general counsel, Karl Procaccini, to Hudson’s seat on the panel. While Hudson’s appointment was met with praise, and got all of the headlines, Procaccini’s drew criticism from Republicans and some environmentalists.
Procaccini had been Walz’s top lawyer for more than five years and had been central to the administration’s response to the COVID-19 pandemic. All of the executive orders issued by the governor – procuring supplies, stopping evictions, directing public health responses, prioritizing COVID care in medical care, closing businesses and then regulating their reopening – were researched and written by Procaccini and his staff.
“… He picked the chief architect of the 2020 lockdowns and mandates that destroyed businesses and kept our kids out of the classroom,” said House Minority Leader Lisa Demuth, R-Cold Spring, noting the appointee’s “zero judicial experience.”
The House GOP campaign committee quickly used the designation in a fundraising email. “You may not have heard his name before. But you’ve lived under his dictates.”
“And we now only have ONE justice left on the Supreme Court who was picked by a Republican governor!” the appeal concluded. But the money requested wasn’t for a challenge to Procaccini. Instead it was “to elect more Republicans to the Minnesota Legislature next year and take back the governor’s office in 2026.”
As unhappy as many Republicans were about the pick, there has been scant talk about doing anything about it. Might a serious candidate – perhaps a current judge or well-regarded lawyer – decide to mount a challenge? Could Republicans fit another contested race into an already long partisan agenda in 2024? Would a Walz appointment of a Walz staffer serve as a surrogate for Republicans to strike out at the DFL incumbent who will not be on the ballot himself?
Probably not.
“It’s a heavy lift and there’s just limited likelihood of success,” said Peter Knapp, a professor of law at Mitchell-Hamline who studies the state Supreme Court.
For one, incumbent judges rarely lose, partly because they have great advantages and partly because few challenge them in the first place. Statewide races are also expensive and fundraising for judges is limited by contribution caps and judicial ethics. In 2020, appointed incumbent Paul Thissen, a former DFL House Speaker, took his race seriously in a crowded year tainted by the pandemic and still raised less than $250,000.
Another reason is that unlike next-door Wisconsin, the Minnesota top court does not have a reputation for partisanship. While there are 4-3 decisions emerging from the Judicial Center in St. Paul, they are rarely the same four and the same three justices, Knapp said.
“It’s not a court that splits on ideological lines. It’s not a court where there’s much percentage in trying to predict how people are going to vote based on the governor who appointed them,” he said. “Everyone tries. I even try. But I haven’t had much success.”
One case this year – State v. Loveless – was a 4-3 ruling. But the dissenters were Gov. Tim Pawlenty appointees Gildea and G. Barry Anderson and Gov. Mark Dayton appointee Anne McKeig.
Minnesota lacks the types of decisions that fire up one political side or the other.
“The cases that have come before the Minnesota Supreme Court that it decided have not been the kinds of cases that have motivated outside groups, particularly business groups,” said University of Minnesota law school professor emeritus Herbert Kritzer. And a candidate can’t tell supporters and donors that a victory could change the makeup of the court because even a victory would leave five DFL-appointed justices.
Why is the GOP so quiet, separate from the press release critiques of what they saw as a partisan appointment to a seemingly nonpartisan position?
“No comments” and requests to speak only on background were the most common responses to inquiries about the 2024 Supreme Court races from the state party, Republican legislators and campaign operatives.
Admitting there is little chance of success is not something parties often do. Saying nothing leaves open the possibility that a rival could emerge. Saying too much could lead to a delay in the appointment (it still hadn’t been made official as of Tuesday) and in turn delay the election to 2026. A natural issue against Procaccini – the government’s response to the COVID has faded along with memories of the pandemic.
People who have thought about the race know the odds are long and the rewards meager.
“Even if you win, what do you win?” one GOP leader said on the condition that they not be identified by name. They’d be a minority voice on a court that leans left.
“You’ve got some people who always vote against incumbents. Period. It doesn’t matter,” Kritzer said. “But a more-common approach to judicial elections where virtually no one knows anything about the candidates, unless there is some solid reasons to vote against an incumbent, you don’t.”
A district court judge who had tried to get out of a ticket by telling an officer he was a judge was defeated, for example. Nearly all others who don’t make such a public mistake win, he said.
All the hurdles have not prevented next-door Wisconsin from seeing Supreme Court races evolve – some say devolve – into hyper partisan elections with conservatives and liberals exchanging majority control based on the last election results. Minnesota has not gone there and it appears that for now, not a lot of people want it to.
The Minnesota State GOP has in the past sought to become more active in court races. The Judicial Elections Committee was empowered to vet and propose endorsements outside the regular endorsement process. In 2010, that system saw the party endorse two challengers to GOP Pawlenty’s appointees, Gildea as chief justice and David Stras, now on the U.S. Circuit Court of Appeals (Stras, like Procaccini, had not been a judge prior to joining the top court). In 2014, the party endorsed candidate Michelle MacDonald. But a similar endorsement in 2016 was blocked on the convention floor.
MacDonald has been the only opponent of sitting Supreme Court justices in four of the last six general elections. She is currently under sanction by the Supreme Court and is not eligible to run.
The Gildea and Stras appointments show the reluctance to challenge Supreme Court incumbents. According to MinnPost’s Eric Black in 2010, the appointments drew attacks from DFLers.
“State Rep. Ryan Winkler, who is also an attorney, used stronger language. In a press release (that means he had time to think about his word choices), he called the appointments “nauseating.” He said Gildea’s promotion was “just a big thank you for the loyal dissent she wrote last week defending Governor Pawlenty’s illegal ‘unallotments.’”
But neither faced DFL-associated opponents in that election.
That isn’t to say the court’s makeup isn’t being watched. After 13-straight years of DFL control of the governor’s office, five of the seven justices now serving were appointed by Govs. Dayton and Walz. That jumps to six when Hudson becomes chief and Procaccini replaces her as an association. The final GOP appointee –Anderson – will reach the mandatory retirement age of 70 in October, 2024.
In addition to what could then be a 7-0 DFL-appointed majority, the 19 member court of appeals has 19 members with six appointed by Pawlenty, seven by Dayton and six by Walz.
But the appointment history of the Supreme Court doesn’t mean the court routinely votes 5-2 with the DFL-appointed justices on one side and the GOP-appointed justices in the minority. There doesn’t appear to be a partisan pattern in most rulings. If the court’s rulings become more partisan, if they release decisions on hot-button issues involving criminal justice, abortion or economics that could change. But it hasn’t happened yet.
“This has not been a partisan court,” Knapp said. “Our Supreme Court, mercifully, has a very different history than the court over across the river in Wisconsin. And most of the people in the bench and bar are happy about that.” He thinks Hudson will continue what Gildea practiced.
“She was not ideological,” he said. “She had a very restrained approach to her jurisprudence. I didn’t always agree with it but I always respected it and it always seemed principled.”
A non-partisan tradition “makes it difficult to run an election campaign and it means those that have been run seldom look like those in Wisconsin,” he said. “And I don’t think there’s a whole lot of appetite for that to change.”
Environmentalists roiled by Procaccini appointment
The Procaccini appointment also drew criticism from some in environmental activism and politics, primarily because prior to this appointment as chief counsel by Walz in late 2018, Procaccini was in private practice that included representing clients such as PolyMet, 3M and Flint Hills Resources.
“Appointing PolyMet’s former lawyer to the highest court in Minnesota, just weeks after the mine lost a unanimous decision before that very court, raises serious questions,” said Friends of the Boundary Waters Executive Director Chris Knopf. “To reassure concerned citizens, we hope Procaccini will remove any appearance of impropriety by recusing himself from all matters related to copper-nickel sulfide mining that may come before the court in the future.”
Procaccini said he would. But it is less likely that a more-liberal candidate would challenge him.
Kritzer’s research on judicial elections across the U.S. finds that for a state that elects its judges, Minnesota presents itself more like an appointment and retention election state. Judges from the district courts to the Supreme Court are usually first appointed to their seats by governors after incumbents step down short of a full term. Then, when the appointee faces voters in nonpartisan elections, they usually run unopposed or virtually unopposed.
Kritzer points out that only twice since 1946 have voters decided a Supreme Court race without an incumbent on the ballot. Once was in 1966 and the other was in 1992 when long-serving Justice Alan Page was first elected.
And not since 1946 has an incumbent Supreme Court justice been defeated at the polls. Before that, historians would have to look back to 1916 to find another one, Kritzer said.
Knapp, however, points out another incumbent Supreme Court justice who lost reelection back in 1898. His name was William Mitchell who was still thought well enough to have a law school named for him that later merged with Hamline to form Mitchell-Hamlin.
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