Monday, September 12, 2011

Destiny for appointment

By Bill Kraus

Two years ago a panel of jurists and lawyers and political types, with the exception of the State Journal’s prescient Scott Milfred, told former Supreme Court Justice Sandra Day O’Connor, who had come to town to advocate appointing instead of electing judges, the following:

1. Wisconsin’s DNA strongly favors elections, of everyone. We invented open primaries. We elect coroners. We elect state officials to jobs that really don’t exist. It’s beyond an obsession; it’s an addiction.

2. We have a full funding law for Supreme Court candidates that spares them the indignity of dialing for dollars and the risk of having to recuse themselves from cases in which donors to their campaigns are involved.

3. We have a tradition of bi-partisanizing candidates, by putting prominent Democrats and Republicans in tandem on the top of judicial campaign organizations.

The Justice was not convinced, but she was impressed.

If she were to come back today, she might hear a different story.

The protests and recalls and legislative turmoil got all the headlines in our tumultuous 2011, but the most significant turn may have been in the way we look at the way we select our judiciary.

The elect-everyone gene is still intact, although more and more counties are deciding to take the office of coroner off the ballot.

The full-funding law achieved a couple of objectives, but the spending for and against the two candidates by outside organizations with an obvious agenda and secret sources of money overwhelmed, obliterated really, the spending by the lightly funded candidates themselves. This was all the justification the new administration needed to call it a failure and to repeal this law and any and all other laws that put public money into political campaigns.

Concomitantly the partisanization of judicial campaigns infected the judicial process itself. Instead of fact-based deliberations and discussions on cases with political consequences by disinterested legal scholars, we got a replication of the two-aisle, caucus-driven polarization that has diminished our legislative process. As one astute observer asked, “When was the last time you couldn’t predict the outcome of a controversial case before our Supreme Court?”

Suddenly two respected state senators (a Democrat and a Republican) have put the idea of an appointed judiciary on the table.

The reigning chief justice, who was the strongest voice in favor of an elected judiciary two years ago, admitted to having second thoughts.

The governing boards of reform organizations like Common Cause are being asked to put this presumably unpassable, untouchable prospect on their short agenda, and are viewing the prospect favorably.

The case for appointment over elections (and, yes, there is a case against it) is buttressed by the fact that over the century or so that judges have been elected in Wisconsin two thirds of those who ascended to the Supreme Court came via appointment. This is interesting but not necessarily alarming.

More alarming is that several of the well-funded groups of ideologues have done the math and found that it is cheaper if you think you have a chance of buying favor to participate in four court campaigns than in 50 and 17 legislative ones. Issue money is pouring into judicial elections.

Most alarming of all is the unseemly behavior of those who have been elected to rise above partisanship and rule on the difficult things that come their in a sedate and scholarly way. A court that behaves like a legislature is not what we bargained for.

All of which adds up to a question that more and more are asking: Is there a better way to the judicial rectitude everyone, okay almost everyone, wants?

Follow Bill Kraus on:
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Bill Kraus is the Co-Chair of Common Cause in Wisconsin's State Governing Board

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