II. Meandering into the Twentieth Century
For the first two-thirds of the twentieth century, the institutional character of the Supreme Court and the judicial system did not change much, and the few important changes came randomly and slowly.
A. No-Party Ballot
At first, candidates for election to the Supreme Court were nominated by each political party's convention. Events changed this.
In August 1906, Governor E.Y. Sarles named Justice John Knauf (1906) to the position(137) opened by the resignation of Justice Newton C. Young (1898-1906) to return to practice in Fargo.(138) Justice Knauf had already been nominated by the Republican convention for election to that position. The story of Justice Knauf's nomination seems best told by former Congressman Usher L. Burdick in his 1956 biographical summaries of Great Judges and Lawyers of Early North Dakota:(139)
The Republican Convention at Jamestown in 1906, was largely controlled by Alex McKenzie and Judson LaMoure, and John Knauf was not their choice for the Supreme Court position. Both registered their opposition and it was because John Knauf had had several cases against the N.P. Railroad and was very successful in those cases.
The first choice of these two political leaders was Tracy Bangs of Grand Forks, but the Republicans in the Convention would not stand for Bangs, as he was too prominent in the Democratic party, and, in fact, was all there was to the Democratic party. Several friends of Knauf canvassed the delegates and Knauf was nominated against the opposition of these political leaders.(140)
According to historian Lounsberry (however confusingly), Knauf had been nominated over Charles J. Fisk, a Democrat and district judge at Grand Forks, despite efforts of the "bar in the northern part of the state [who] clamor[ed] for the nomination of Fisk and to take the judiciary out of politics."(141) In any event, Justice Fisk (1907-1916) defeated Knauf at the November 1906 election.(142)
Knauf was defeated by false reports "that he was a boozer and a libertine," Burdick's book submits, although he "did not then, nor has not since, used intoxicating liquors of any character."(143) "His personal life was then, and always continued to be, exemplary. . . . Here is a case where misstatements, intentional falsehoods and vicious political opposition, fanned into a state-wide hysteria, defeated one of the great men of North Dakota." (144)
After this nasty political contest, Lounsberry concluded, "[p]ublic sentiment was then ripe for a non-partisan judiciary."(145) A non-partisan-judiciary law was enacted by the 1909 legislature to forbid any references about party affiliation in petitions for nominating judges and to formulate a separate "Judiciary Ballot" to list candidates without party designation.(146) Since 1910, all judges in the state have been placed on the ballot without designation of party affiliation, and all judges have been elected on a no-party ballot.(147)
Still, as we will see, election on a no-party ballot has not always prevented political endorsements of justices.(148)
137. See Lounsberry, supra note 1, at 452.
138. See Sketch, supra note 2, at 25.
139. See Usher L. Burdick, Great Judges and Lawyers of Early North Dakota (1956).
140. Id. at 4.
141. Lounsberry, supra note 1, at 452.
142. See Sketch, supra note 2, at 30.
143. Burdick, supra note 139, at 4.
144. Burdick, supra note 139, at 6.
145. Lounsberry, supra note 1, at 452.
146. See 1909 N.D. Laws ch. 82, at 82; see also Lounsberry, supra note 1, at 447.
147. See N.D. Cent. Code §§ 16.1-06-08, 16.1-11-08 (1997 & Supp. 1999).
148. Except to campaign for their own election, judges today are also generally barred from any political activity. See North Dakota Code of Judicial Conduct Canon 5 (2000).