Although the litigation such as that necessary to resolve the Senate race between Al Franken and Norm Coleman is fortunately extremely rare, it demonstrates the importance of having a non-partisan judiciary available to resolve such conflicts. Fortunately for Minnesotans, their legislature has declared that judicial elections should be non-partisan, and the Minnesota Supreme Court has implemented that decision by adopting a code of judicial conduct that prohibits judges and judicial candidates from endorsing political candidates and engaging in other partisan activity.  Therefore, none of the justices on the Minnesota Supreme Court had to recuse themselves because they had endorsed Franken or Coleman (although two had to recuse because they were on the state-wide canvassing board), and the majority of the highest court in the state was available to do the job for which they were elected – decide the most important legal issues for the people of the state.  Fortunately, a federal court recently rejected a challenge to the Minnesota endorsement clause so that, if a similar situation arises in the future, the same protections will apply.  Wersal v. Sexton, 607 F. Supp. 2d 1012 (District of Minnesota 2009).  The plaintiff in that case had argued that disqualification would protect judicial impartiality, but the court disagreed, focusing on the un-workability of recusal not in the rare case but “when a judge endorses an individual who is elected to a position where he or she is frequently a litigant.”

Wisconsin is not so fortunate, as a federal court there overturned the endorsement clause and other restrictions on partisan political activity even though judicial elections are supposed to be non-partisan by law.  Siefert v. Alexander, 597 F. Supp. 2d 860 (Western District of Wisconsin 2009).  The court believed the “gag order” was not “fooling anyone” because “many if not most judicial candidates have political lives before their judicial campaigns and often are easily identified as ‘Republican’ or ‘Democrat’ even if they do not explicitly run as such.” What the court fails to recognize is that by requiring judicial candidates to eschew party labels during the campaign, the code ensures that judicial candidates demonstrate their willingness to take on a new role and reject partisan loyalties and embrace judicial independence once on the bench.