A few days ago, a new chief justice and a new associate justice of the Minnesota Supreme Court were sworn in at the Landmark Center in St. Paul. Most of the state’s district and appeals court judges were present, as were many regional federal judges. It was a brilliant display of democratic and judicial ritual and passage, and given added drama by the unexpected appearance of U.S. Supreme Court Justice Clarence Thomas to speak briefly before swearing in the young associate justice, his former law clerk.
This was an unexpected turn of events inasmuch as Governor Tim Pawlenty had appointed a new chief justice only three years ago, and it was expected that he would at least fill out his 10-year term (and that Pawlenty would have no more appointments to the state’s highest court). Pawlenty is a conservative Republican who is completing his second term a governor of a state which used to vote liberal and Democrat (in this state, the party is named the Democratic-Farmer-Labor Party or DFL). Pawlenty’s two predecessors, Governors Arne Carlson (a moderate Republican) and Jesse Ventura (a conservative independent) were given praise by all sides for their judicial appointments. Inasmuch as the there has not been a liberal governor in the state for 20 years, the tone of the judiciary is is moderate to conservative. (With the governor’s seat open this year, DFLers are more than thirsty for a return to gubernatorial power for a wide range of public policy issues, not the least of which would be the opportunity to appoint liberal judges to the state’s district benches, court of appeals and supreme court.)
Pawlenty’s previous choice for chief justice did not always seem comfortable in the job, including his presiding over the 2008 senate election recount (which remains controversial) and deciding against the governor’s consitutional right to unallotment in the recent budget-balancing confrontation with the DFL-controlled legislature.
His sudden resignation gave his former law partner (Governor Pawlenty) an opportunity to not only replace him, but by elevating the most conservative sitting associate justice to the chief justiceship, he got to appoint a new justice as well. This is similar to the opportunity that faced President George W. Bush when he nominated John Roberts to be chief justice to replace the recently-deceased William Rehnquist instead of nominating Roberts, as he originally did, to fill the seat of retiring Sandra Day O’Connor. He then appointed Samuel Alito to fill the O’Connor seat. This transformed a split court into a mostly conservative court, and even though President Obama now has had two appointments (to replace retiring liberal justices), he has not been able to change the ideological bent of the Court.
Governor Pawlenty, now leaving office this year to run for president in 2012, has been able to accomplish the same goal. His appointment of a new associate justice to replace the newly-elevated chief justice was a 35 year-old conservative wunderkind who had previously been law clerk to Justice Clarence Thomas. The choice of this new justice has provoked muttering and even complaint from some liberal members of the Minnesota bar, but no one could deny his qualifications and brilliance. For liberals to also argue against him because his primary legal experience has been as a professor of law at the University of Minnesota Law School might seem colossally hypocritical inasmuch as President Obama has just nominated a woman for the US. supreme court whose credentials likewise are primarily as a legal teacher and scholar.
Having made a powerful imprint on the Minnesota judiciary that will last long past his departure from office, Governor Pawlenty now leaves his strongest legacy with a “two-fer” at the level of the state supreme court.
None of this will likely be lost on national political observers trying to decipher what a President Pawlenty might do in 2013 or later.