Sunday, December 5, 2010

Elect v. Appoint: making the case

By Bill Kraus

Arguments for appointing judges:

1. Most judges are appointed at first anyway to fill seats that open up due to death or resignation.

2. The panel of experts which is a part of the appointment process and whose role is to recommend a list of candidates the governor must choose from screens out the un- and under-qualified who might slip by a lightly informed electorate.

3. Judicial elections are not immune from the misleading, superficial, special interest-financed campaigns that are the current bane of partisan campaigns.

4. If an unworthy appointee does slip through the rigid nominating, screening, pre-appointment process, there is a retention election in the system which will correct any appointment mistakes.

Arguments for electing judges:

1. The citizens of Wisconsin have an incurable addiction to the right to elect anyone and everyone to almost every conceivable office. The seriousness of this affliction was confirmed recently when the voters of Rock County rejected a proposal to appoint instead of elect their coroner.

2. Retention elections are an opportunity for the rich, rabid, narrow interest groups to reject judges who rule against them on their pet issue.

3. Non-partisan elections which are conducted separately from partisan elections favor and seek candidates who aspire to the goal of a disinterested, fair-shake judiciary by attracting real non-partisans or by bi-partisanizing those who arrive with partisan histories and aspire to non-partisanship.


1. The federal appointment system works.

2. Retention elections have been around for a very long time and have always been benign.


1. The federal system is rooted in partisanship, a breeding ground for ideologues, and is not where anyone would go in search of open-mindedness.

2. The federal system does not include a panel which selects a slate of nominees from which the appointing president must select. Nor does it include any kind of retention review to correct whatever mistakes slip through the nominating and confirming processes. It is an apple being compared to an orange.

3. The recent rejection of three appointment-system judges in Iowa based on decisions they made on gay marriage introduces malignancy into a previously benign area. Will it metastasize to other issues and other places? How can it not?


No system is perfect. The Wisconsin system, which is what the election-friendly people of this state prefer, is less imperfect than the partisan federal system and the de-partisanized but otherwise flawed appointment system invented in Missouri and being proposed for adoption in Wisconsin.

A request to the federal judiciary:

We would appreciate it if the federal courts would keep its members’ biases in favor of an appointed, partisan, lifetime judiciary out of the decisions involving our preferences for a disinterested, elected one whose members are or aspire to non-partisanship. Recusal isn’t necessary. Just quit taking cases.

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