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Membership in political parties is no big deal

Should judges and judicial candidates be allowed to be members of political parties?

Milwaukee County Circuit Court Judge John Siefert is currently suing the State for the right to be a member of the Democratic Party.

I’m not an expert, but I think he will ultimately win. And I don’t think that’s a bad thing.

In many other states, judges can belong to political parties. As a general matter, I think our judiciary is superior to theirs, and the partisanship of their elections is one reason why.

But those states don’t merely allow their judges to join political parties, and advertise that affiliation in campaign materials. The parties themselves hold primaries, and the general election pits a Democrat versus a Republican.

Even if Siefert wins, we won’t have that here. Wisconsin can still hold nonpartisan elections, with no political affiliation on the ballot.

There is nothing uniquely horrible about political parties that even mere membership in one need be forbidden to all judges and candidates for election to the judiciary (curiously, a lawyer does not need to resign party membership if he applies for appointment to the judiciary in Wisconsin, although he must resign if he gets the appointment).

Consider the two following scenarios:

A member of the Republican party and a member of the Democratic party are running for election to be a judge and they list those affiliations in their campaign materials; and

A member of the Federalist Society and a member of the American Constitution Society are running against each other, and they list those affiliations in their campaign materials.

In the first scenario, the affiliations will have little impact on how I vote; I will vote for whichever candidate I consider more qualified.

In the second scenario, the conflicting affiliations will not be outcome determinative of my vote either; but they will have far more impact than the affiliations in the first.

Assuming, of course, that I consider both candidates to be qualified for the position they seek, I will likely vote based on those affiliations, even if that means voting for the candidate I consider less qualified.

Yet the first scenario is illegal in Wisconsin, while the second is perfectly acceptable.

Maybe some people can make a good argument why the first scenario is worse than the second. But I don’t see how it could be so much more awful that the ban on party membership could survive a First Amendment challenge.

2 comments

  1. Political parties advocate for results; legal societies advocate judicial philosophies.

    A politcal affiliation implies the Judge supports and/or agrees with the majority of the party’s published platform and will adhere to their viewpoints/further their goals whilst in office. By implication then, a politcal affiliation violates the prohibition on prejudging cases.

    Also, please note that the prohibition is not limited to politcal parties, but any politcal association. I don’t want my judicial candidates announcing they are members of the NRA, ACLU, Planned Parenthood, etc. How could a Judge with one of these affiliations be fair and impartial when judging a case that affects the group’s interests? I don’t want to know the judge’s personal viewpoint on any substantive political issue.

    As to legal societies, I DO want to know how the candiate approaches statutory and constitutional interpretation and what s/he believes is the proper role of the judiciary. As you said, I would likely vote for a judicial candidate based on their judicial philosophy even if that means voting for someone with less “judical” experience.

  2. I don’t know where the commentator, above, comes up with the idea that a political affiliation implies that a Judge supports and/or agrees with the majority of the party’s political platform. And even if he does, it doesn’t mean that he or she will rule according to his personal beliefs. Democrat or Republican, I would hope and expect our judges to rule according to the law.

    Rather, what is involved her is being open and honest in our judicial elections. When Govenor Pat Lucey appointed Democratic State Representative John McCormick to the bench, the voters knew he served in the Assembly as a Democrat. When Govenor Tommy Thompson appointed Republican State Representative David Prosser to the State Supreme Court bench, the voters knew he served in the Assembly as Republican leader. When the voters elected me to the Milwaukee Municipal Court in 1993, they knew that I served in the Courthouse as a Democrat holding the post of County Treasurer. And hopefully they knew that I had been a delegate to the 1972 Democratic National Convention and an alternate presidental elector for the Democratic ticket in 1992.

    This is one of the most exciting presidential primary contests in our nation’s history. I would like to participate in my own small way. But I can’t. While I strongly believe in judicial independence, I don’t see how taking vacation time to again help a candidate in the snows of New Hampshire in any way would compromise impartiality in Wisconsin.

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