The resignation of Minnesota Supreme Court Chief Justice Eric Magnuson gives Gov. Tim Pawlenty a chance to do something he has done twice before: pick the person who holds the high court’s top spot. But not everyone is happy about letting the governor choose again.

Attorney Jill Clark argued before the state Supreme Court on Tuesday that the secretary of state should put the chief justice’s seat on the November ballot. Magnuson was due to stand for election this fall, but the timing of his resignation allows Pawlenty to choose his replacement instead of voters. The position wouldn’t be up for election again until 2012.

Clark argued for a temporary appointment to fill the time between Magnuson’s resignation, which takes effect June 30, and the fall election.

“There is no explanation on why numerous, numerous justices are not facing an election,” Clark said before the court. “We would ask that the court come down on the side of elections.”

Clark said the chief justice slot hasn’t been filled by voters since Kathleen Blatz was elected in 2000. Starting with her resignation in 2006 before she was due to stand for re-election, the last three chief justices have resigned and had their positions filled by appointment.

Solicitor General Alan Gilbert argued that the constitution requires Pawlenty to fill any judicial vacancies, regardless of a judge’s reasons for resigning.

“The governor is not only permitted, but obligated by the constitution to fill the office of chief justice,” he said. Gilbert said the constitution also requires that the appointee holds office for at least one year before facing a general election.

Questions from the justices also stuck close to constitutional language.

“The constitution says the position must be filled ’whenever’ there is a vacancy,” Associate Justice Alan Page said. “That suggests to me that it doesn’t matter why, only that it must be filled.”

But for attorney Greg Wersal, who is joining Clark in the lawsuit, the problem is systemic. He says Magnuson’s resignation is another in a line of judges timing their departure so that the governor can appoint the person he wants.

Wersal said at least 95 percent of all state judges have been appointed to their position.

“Think of any other office: a state legislator, a member of Congress, the governor. Where do you see them resign before the end of their term? Nowhere. Only judges,” he said. “We wouldn’t allow this game to go on anywhere else.”

Page is the only current Supreme Court justice to be elected without being appointed to the court first, and no current Court of Appeals judge first rose to the bench via election.

Both Wersal and Clark want to run for chief justice this year.

Wersal has successfully challenged judicial election traditions before. He won a case before the U.S. Supreme Court in 2002 that led to the removal of most restrictions on campaigning by judicial candidates.

Associate Justices Barry Anderson, Lorie Skjerven Gildea, Christopher Dietzen and Chief Justice Magnuson all opted to sit out of the hearing. That left associate judges Page, Paul Anderson, Helen Meyer and two fill-in judges from the state’s Court of Appeals to hear the arguments.

The state’s Supreme Court has no timeline for making a decision on the case.