We Should Not Minimize Public Input on Judicial Selection

By James Wigderson
Special Guest Perspective for the MacIver Institute

After almost every state Supreme Court election we hear the usual complaints about the tone of the campaigns. They’re too nasty. Someone said something mean. Some candidate spent a lot of money. Outside groups are trying to influence the election.

Democracy is necessarily messy and sometimes even upsetting to the gentle précieuses of the state’s editorial boards. The reason why the campaigns become so nasty and messy is because the stakes are so high.

The Wisconsin State Journal has a simple solution. If the elections are as bad as they claim, why not do away with them? So they support something called “Merit-Based Selection,”, or M-BS.

M-BS would take the selection of judges out of the hands of the voters. Instead, a “citizen panel” (as the editors describe it) would create a list of potential candidates for the governor to choose from. The governor would only be able to choose from the list. At the end of the judge’s term, voters would only have the right to vote yes or no on the judge serving another term. If the voters vote no, then the same “citizen panel” would get to make another list, the governor another appointment, and the citizens can just lump it until the next term expires.

Or if the “citizen panel” does not like a judge for some reason, they can remove the judge, even if the judge enjoys the popular support of the electorate. To fill the vacancy created by the “citizen panel” the panel will just create another list for the governor.

No more messy seeking the consent of the governed, no more accountability to the great unwashed via contested elections. The great Brahmins of the “citizen panel” will save us all.

The “citizen panel,” the Wisconsin State Journal tells us, is “an independent panel of lawyers and non-lawyers.” They would be “chosen by a variety of non-political and political sources.”

If it does not sound like a system of accountability, well, that’s the point. Even the popularly elected governor (at least for now) would have no say on who his judicial pick might be because he will be limited to the list.

In other words, you can have any judge you want, as long as they’re approved by… whom? The increasingly liberal editors of the Wisconsin State Journal? The members of the liberal Wisconsin Judicial Integrity Campaign Committee that tried to prevent Justice Michael Gableman’s election? Chief Justice Shirley Abrahamson?

And just who watches the watchmen? How will they be appointed, and how can they be removed?

The problem with attempts to insulate any selections of our leaders from the democratic process is that you’ve only made the process less accountable. We saw it last year when the supposedly non-partisan and independent Public Service Commission members appointed by Governor Jim Doyle used their offices to support Doyle’s plan to impose a broader renewable energy mandate.

We saw it when the supposedly independent and non-partisan State Elections Board suddenly reversed a long-standing policy on federal campaign contributions and ruled against Congressman Mark Green in his race for governor in 2006, possibly costing him the election. The case was later settled with the Board agreeing that it had reversed itself when it ruled against Green.

We don’t have to go back very far to see examples where the system worked in holding the judiciary accountable under the current system. In both 2010 and 2011, voters in Waukesha County rejected Doyle appointments and put candidates more to their liking on the bench instead. In 2010 Judge Richard Congdon, a former Democratic Party chairman in Waukesha, was defeated by State Representative Mark Gundrum. In 2011, Judge Kathleen Stilling was defeated by Assistant District Attorney Lloyd Carter.

In both of these examples, Waukesha voters chose judges that were closer to the judicial philosophy that best represented them rather than the Doyle appointments.

Under the “Merit-Based Selection” plan, instead of picking two judges the voters in Waukesha would have been reduced to merely saying no on keeping the current judges. Then the same people that would have recommended the judges that were rejected would have been able to just make the governor pick two more. Instead of the consent of the governed, we would have a system that would hold the voters’ preferences in contempt, as their judges would be forced upon them.

Making matters worse, M-BS is a solution in search of a problem. Even with the noise and fury of the last several state Supreme Court elections, voters ultimately made their choices on the issues that matter.

Despite the distractions that surrounded a possible conflict of interest for Justice Annette Ziegler, the voters were able to take that issue fully into account when they chose her based on her judicial philosophy over Madison attorney Linda Clifford.

Justice Michael Gableman came under fire from both the left and the right for a television ad his campaign ran. Again the voters were able to take that fully into account when they chose him and his judicial philosophy over incumbent Justice Louis Butler. Butler’s rulings had revealed a judicial activist philosophy counter to the desires of the Wisconsin electorate. Had the “Merit Based Selection” process been in place, Butler’s replacement would have been chosen by the same process that chose Butler. Not the electorate.

Justice Shirley Abrahamson was able to convince the public that the distinction of being a judicial activist – she dismissed the idea was even definable – was far less important than her experience.

Now we have Justice David Prosser apparently defeating JoAnne Kloppenburg, a rejection of the idea that judicial elections should be decided on a single issue.

Notice, however, the Prosser-Kloppenburg race undermines the case for “Merit-Based Selection” and having an up-or-down referendum on the incumbent every ten years. This last race amounted to just that, with little attention focused on Kloppenburg or her qualifications. Clearly we did not avoid the unseemly election campaigning the editors had hoped to avoid.

But even if those elections had gone the other way, then surely it would be far better to work to convince the public of the criteria that should be used in selecting a Supreme Court Justice rather than do away with elections entirely. The true importance of the judicial campaign is to educate the public on what’s important about electing a certain type of judge. If the voters choose different criteria, then the candidates and the editors at the Wisconsin State Journal will just have to work harder.

In those states that have M-BS they are able to seat judges and they are able to avoid the voters and the messy elections that they bring.

Augusto Pinochet made the Chilean economy work. Mussolini made the trains run on time in Italy.  But what “works” is not necessarily desirable as it misses the most fundamental point.

If we are to have a representative democracy with accountable public officials, we should be looking for ways to hold them more accountable, not less. In Wisconsin, the state that launched the popular election of Senators, we should not take a step back democratically by abandoning our right to give consent to who serves in the judiciary.