Chief justice cites ‘bully pulpit’ as source of constitutional amendment (UPDATE)

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Republican lawmaker’s push to retool the way Wisconsin’s chief justice title is bestowed could be, longtime Chief Justice Shirley Abrahamson said Wednesday, a result of her ability to use the “bully pulpit.”

Her remarks came after her delivery of the annual State of Judiciary Address at the Kalahari Resort in the Wisconsin Dells, a speech in which she called for reducing the influence of political spending on the court, new rules regulating when the justices must recuse themselves from cases involving donors to their election campaigns, a more-effective system of disciplining judges and a system for responding to personal attacks against judges.

She also talked about various law schools and other groups that have, many times at her prompting, begun to look at ways to restore public confidence in the court system.

As chief justice, Abrahamson, who has been on the court since 1976 and has served as chief since 1996, gives the annual address to a gathering of most of the state’s trial and appellate court judges.

“Wisconsin conducts non-partisan judicial elections in which independent groups, some identified with political parties, have begun to expend substantial sums of money,” Abrahamson said. “These sums invariably raise issues of the appearance of partiality and recusal standards, and the public is concerned.”

Republican lawmakers recently proposed a constitutional amendment that, if approved by voters, would end the state’s more-than-century-old system of bestowing the chief justice position on the justice with the most years on the bench. The proposal instead would have the justices elect their leader every two years.

State Rep. Jim Ott, R-Mequon and chairman of Assembly Judiciary Committee, said some observers of the court are always going to believe that Republicans have proposed the amendment because “the party doesn’t like the person who is the chief justice.”

He instead referred to what the authors of the proposals have said – that Wisconsin is one of the few states that bestow the title of chief justice on the bench member with the most seniority and that the public should be given a say on which selection method is best. For a proposed amendment to the state constitution to be adopted, it must be passed by the Legislature in two separate sessions and then approved by voters in a referendum.

“We are doing something in the Supreme Court that we don’t have in any other state institution – a way of selecting the person who is constantly in charge,” said Ott, who voted, with other Republican members of the Assembly Judiciary Committee, in favor of the amendment Thursday. “So there are a lot of different ways you can look at it.”

Although not entirely supported by independent analysis, a common assumption about the members of the Wisconsin Supreme Court is that they can be easily divided into liberal and conservative blocs. Many outside observers perceive Abrahamson to be the leader of the liberals, pitting her against the four justices who are believed to be conservatives: Pat Roggensack, David Prosser, Michael Gableman and Annette Ziegler.

The Wisconsin Chief Justice’s powers are more limited than those held by justices in similar positions throughout the country. The Wisconsin chief, for instance, does not choose which justice will write an opinion on a particular case; the assignment is instead done through the random drawing of lots.

The chief justice also has no more say than her colleagues on which cases the court will take up. Under the state constitution, the chief’s main duty is to administer the state’s court system.

Abrahamson, asked after her speech why Republicans might want to remove her from a position with so few formal powers, said she was reluctant to speculate about the motives of others. She instead cited comments that former Dodge County Judge Andrew Bissonnette made at an Oct. 29 public hearing before the Assembly Committee on Judiciary.

Bissonnette then argued against a contention made by proponents of the amendment – that allowing the justices to select their own leader would lead to less discord on the court. He contended that elections could actually give rise to more infighting, especially as the bench members jostle for power.

Bissonnette also said having someone in the chief justice position for stretches of at least 10 years has served the court well by allowing that person to act as an ambassador and forge long-term relationships with other state courts and outside groups.

Abrahamson acknowledged Wednesday that her position as chief justice does make her the face of the court in the public’s eyes.

During Wednesday’s State of the Judiciary Address, she dwelt on the large amounts of money spent in recent Supreme Court elections and the harm she said that spending has done to public opinion of the court.

“If meaningful public financing of judicial elections is in the future,” she said, “the road there is not visible.”

She commended the Wisconsin State Bar’s Judicial Task Force’s proposal to have justices serve single, 16-year terms on the bench, rather than the current unlimited number of 10-year terms. Members of the task force have argued such a change would prevent the justices from having to worry about how decisions they make in court will affect their chances of being re-elected.

Abrahamson, though, said the proposal raises many questions that must be answered before she gives it a wholehearted endorsement. What, for instance, she said, would such a change do to make judicial campaigns more transparent and recusal rules better attuned to inspiring public confidence? Also, what is a justice who leaves the court after a single term to do next in her career?

“Those are just two questions,” she said. “There are more.”

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