MINOT, ND — Recently, we saw headlines about Judge Douglas Bahr getting appointed by Gov. Doug Burgum to finish the term of Justice Gerald VandeWalle who has retired after a 44-year tenure on the state Supreme Court.
I thought you readers might appreciate some insight into how that process works.
Chief Justice Gerald VandeWalle was awarded the Theodore Roosevelt Rough Rider Award in 2015.
Tom Stromme/Bismarck Tribune
Our judges are elected, but they typically run unopposed. Looking at the races for state Supreme Court we’ve had exactly three competitive races since 2000. When you vote for judges, you don’t often have a choice.
The process through which our judges are typically chosen is political, but it’s not something that happens at the ballot box. It’s fairly standard practice for judges and justices to be appointed to fill vacancies so that, by the time they reach the ballot, they’re already incumbents.
Of North Dakota’s five Supreme Court justices, four were appointed to the court first before facing election. Only Justice Jerod Tufte came to the court by way of the ballot box.
The politics around judicial appointments are real. They’re just not out in the open on the campaign trail.
Let’s look at the appointment of Justice Bahr.
I’ll preface this by saying he was a solid choice and well-qualified. My intent is not to be critical of him. What I’m aiming at is the process.
Under state law, our governor doesn’t just get to pick whoever he wants to appoint to the court. Chapter 27-25 of the North Dakota Century Code creates the six-member Judicial Nominating Committee of two appointees from the governor, the chief justice of the state Supreme Court, and the president of the state bar association.
When a judicial appointment is needed, this committee sends the governor a list of two to seven candidates. The governor may appoint someone from that list, ask the committee for a new list, or call a special election to fill the vacancy.
To replace Vande Walle, the Burgum committee sent three candidates: Judge Bahr, of Bismarck; Judge Stacy Louser, of Minot; and Assistant US Attorney Jake Rodenbiker, of Fargo.
That these folks were the finalists is perhaps not surprising given their connections to the nominating committee members.
Bahr, before his judicial career, worked for the Crowley Fleck law firm. So, too, do committee members Kent Reierson and Paul Forster.
Judge Louser last ran for re-election in 2018 (unopposed, naturally), and one of the co-chairs of her campaign, per her website, which was nominating committee member Laura Mihalick.
Jake Rodenbiker is a member of the Federalist Society. So is Justice Tufte, who is serving on the nominating committee. When Tufte campaigned for the state Supreme Court, he had Rodenbiker’s outspoken support.
Again, I have no criticisms to make of Justice Bahr’s appointment. He’s exceedingly qualified. My quibble is that the judicial branch in North Dakota is supposedly an elected branch of government. And yet the people sitting on the bench get there, more often than not, through a largely opaque appointment process guided by a few people whose personal connections to the candidates, it seems matter a great deal.
We could probably do better.
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