Judging history

By Bill Kraus

Former Supreme Court Justice Sandra Day O’Connor is stumping the country urging those states that elect judges to switch to an appointed judiciary with a merit nomination process that limits the elected executives‘ choices to names provided by a dispassionate group of outside experts.

What we have in Wisconsin is a cobbled together judicial election system where, even though over half of the judges get their first jobs by appointment, the election process itself is shaped (or twisted) to favor candidates who are or aspire to be non-partisan at best and bi-partisan at the very least including those who got their jobs originally by partisan appointment.

Federal Judge Barbara Crabb has unfortunately made a ruling in favor of outright partisanization of the process which both former Justice O’Connor and the Wisconsin system are trying to minimize.

If I had to bet, I would wager that Judge Crabb is going to prevail. Certainly in the short run, because the current Supreme Court is not likely to share the Wisconsin objective, and even if Justice O’Connor’s campaign does succeed, it won’t be anytime soon.

It seems to me that it is foolish to think that in Wisconsin, where we are addicted to electing everybody including coroners, we are going to succumb to Justice O’Connor’s blandishments. Unless. Unless Judge Crabb’s decision stands and we are faced with the prospect of picking judges on their political affliations instead of their ability to be fair and dispassionate and not beholden to preconceived notions or philosophies.

I think we want a non-partisan judiciary. We want to be judged by people whose decisions are based on the facts and the law of the cases before them. Period.

This is hard to achieve and easy to aspire to.

What, then, to do about the prospect that partisanship and the kind of predictability that is its handmaiden will infect our judiciary system?

For openers let me suggest that it is possible to protest the Crabb decision on the theory that any judges who rule on these matters who became a judges via a partisan appointive system should recuse themselves from these cases on the assumption that they are naturally biased in favor of a partisan judiciary.

This recusal would take every federal judge off the Wisconsin case.

Failing that, the only recourse is Justice O’Connor’s proposal.

As, if, and when the federal courts tell us to abandon our principles and our history the federal appointment system should take a dose of the same medicine.

The O’Connor appointment system is pure merit at the core. The federal appointment system is not.

Those federal judges who favor Judge Crabb’s idea might take judicial notice of the fact that the law of unintended consequences might come into play if the Crabb decision prevails. To wit: If the federal judiciary is going to mess with Wisconsin and other states that have a non-partisan elected system, they are flirting with a kickback that could set off a movement leading to the adoption of the O’Connor merit appointment proposal everywhere.

Fair’s fair.

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