Selecting the Supremes
In a rare display of bi-partisanship, State Senators Tim Cullen (D, Janesville) and Dale Schultz (R, Richland Center) are working together on an amendment to the Wisconsin Constitution that would replace the election of justices of the State Supreme Court with appointment by the Governor from a list submitted by a Judicial Commission. The Commission would be selected by the Government Accountability Board . Cullen favors a non-renewable twenty-year term for each justice selected, while Schultz favors a ten-year term with a retention (yes/no) vote at the conclusion of each term. There would be no provision for recall of a justice, although they could be removed by impeachment, disbarment, or conviction for a crime.
The two senators spoke on their plan at a forum at the Marquette University Law School this past Friday, September 16. They noted the following two drawbacks of the present system of electing justices:
1. Campaign contributions are polarizing the Court. There is big money for right-wing candidates, and big money for left-wing candidates, but almost no money for centrists. The public financing available in the April, 2011, general election ($400,000 per finalist) was vastly overshadowed by millions spent by special-interest groups. (The provision of public financing has since been repealed.)
2. The justices are becoming too ideological. The political philosophies of justices are so fixed and well-known that an observer can accurately predict the outcome of many controversial cases. (1)
Although both statements are true, I am not convinced that the proposed alternative would make the Court any better. For example, the most controversial Justice, David Prosser, a former DA and Speaker of the Assembly, had precisely the right combination of experience and connections that would have favorably impressed a Judicial Commission. Most of the others were judges before being appointed or elected to the Court, so they would also have garnered spots on the the Commission short list. Presumably the list of finalists presented to a future Governor would include both Democrats and Republicans, so that the Governor could still pick someone who shared his basic political viewpoint.
Eliminating the elections would indeed eliminate the baneful effects of campaign contributions, but this is "throwing out the baby (democracy) with the bathwater (buying influence)." Even the Schultz proposal for "retention elections" would still provide an opportunity for big spending to affect the outcome. (Imagine: "Would you vote to retain Justice Smith, who voted to release a convicted murderer from prison so he can kill again?") Since decisions made by the State Supreme Court have as much (or even more) power over our lives than those made by elected legislators, that is all the more reason that people making such decisions be selected by the people.
The only power the ads (2) have now is to influence us, the voters of the state, but we still have the final say on who serves on the State Supreme Court. Under the Cullen-Schultz plan, the Governor would have the final say, and only a small group of citizens would have any input in the selection process. I would rather put up with the obnoxious campaigns than give up my right to choose the lawyers who make major decisions about the government of this state.
Gerald S Glazer
(1) For example, this blog correctly predicted that the Dane County Circuit Court decision to invalidate the Anti-Collective Bargaining Law would be overturned by the State Supreme Court.
(2) Most ads produced by outside groups in the past several Supreme Court races have been mainly character assassination. Anyone who does not want to be vilified ad nauseum by millions of dollars worth of TV attack commercials should not seek election or appointment to the State Supreme Court. Sad, but true.