Milwaukee’s chief judge doesn’t want to join the party

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Should judges be allowed to join a political party?

For her part, Milwaukee Circuit Court Judge Kitty K. Brennan said she hopes the Wisconsin Judicial Commission prevails in its defense of Judge John Siefert’s federal lawsuit. Siefert has challenged the judicial code’s prohibition against joining a political party.

Brennan, Milwaukee’s chief judge, hasn’t discussed the case with Siefert, so she cannot speak to his reasons for pursuing the lawsuit. But, she does not believe the majority of Wisconsin’s judges would support the rules change he wants, if they were given a vote.

Party Perceptions

Some people have ideas or beliefs about a judge’s personal politics, she explains. Sometimes that’s based on previous, open party affiliations, and sometimes it’s based upon if a Republican or Democratic governor appointed him or her to the bench. The problem is, that that’s not always predictive, nor should it be, of how a judge approaches an individual case, from her perspective.

“I know from talking to a lot of other judges and from my own personal experience, that sometimes the way we might want to rule is not the way we must rule. We often times have to decide a case contrary to our own personal beliefs because that’s the law,” Brennan said during an interview. “Maybe this sounds corny, but I think it’s true, and that’s why judges in Wisconsin take an oath to be impartial, and we mean it, even if it means giving up some of our own personal rights.”

Milwaukee Judge Dennis P. Moroney, of the Milwaukee County Circuit Court, whole-heartedly agrees with Brennan.

Politics have no place in judicial elections, said Moroney, who notes that Republican Party of Minnesota v. White, decided in 2002 by the U.S. Supreme Court, opened the door to injecting politics into judicial races by striking “announce” clauses in judicial codes of conduct. It’s no coincidence that the plaintiffs in that case were represented by Siefert’s attorney, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind.

Post-Republican Party of Minnesota v. White, the Wisconsin Supreme Court re-examined its judicial ethics code so it would be in compliance, Moroney said.

Then came Opinion 06-1R from the Wisconsin Judicial Conduct Advisory Committee, of which Moroney is a member. He drafted that opinion for a 5-4 majority of the commission in 2006. The majority concluded that a judge should not publicly express a personal opinion as to the fairness, efficacy and wisdom of the death penalty, which was the subject of an advisory referendum being presented to the citizens of Wisconsin.

And Moroney said that in Duwe v. Wisconsin Judicial Commission –- also a case where Bopp represented the plaintiff – Judge John C. Shabaz of the Western District of Wisconsin struck portions of the ethics code that fell under the purview of Republican Party of Minnesota v. White. But, what Siefert is seeking in his lawsuit goes way beyond the “announce” clauses that the latter decision dealt with.

‘Imperfect System’

Moroney agrees that it’s sometimes hard for voters who are unfamiliar with the legal system to make informed choices about who’s the better judicial candidate.

“It’s an imperfect system. But I don’t think we want to go down the road where a candidate’s responses to a worksheet of 20 or 30 ‘hot-button’ issues is how voters make up their minds, either. I think it demeans the judicial process,” he says.

Moroney adds that it’s fairly well-known among judges nationwide that Bopp is looking for plaintiffs willing to participate in lawsuits challenging judges’ speech limitations.

Bopp has been associated with “Right-wing religious causes,” noted Thomas J. Basting Sr. of Midwest Mediation in Madison, who is also president of the State Bar of Wisconsin.

Basting finds it ironic that Bopp is representing a judge who wishes to join the Democratic Party.

Basting has made maintaining an independent judiciary a centerpiece of his bar presidency, and to that end, set up the Wisconsin Judicial Campaign Integrity Committee.

Basting emphasizes that he’s not speaking on behalf of the State Bar or the committee, but rather, just giving his own personal opinions based upon multiple decades of practice before many of the state’s judges.

“Wisconsin has a longstanding tradition of a nonpartisan judiciary,” Basting said in an interview. “I think the rules we have in place that prohibit judges from engaging in partisan politics and from personally soliciting campaign funds have worked very well and have enhanced Wisconsin’s reputation for a fair and impartial judiciary.”

Justice David T. Prosser Jr. was a leader in the Republican Party before becoming a justice on the Wisconsin Supreme Court, but that doesn’t necessarily mean he decides cases as a Republican, Basting said. Likewise, Justice Louis B. Butler Jr. has been cast by the press and others as a liberal, but that doesn’t mean he decides cases as a liberal.

“Justice Butler’s been criticized by the [Judge Michael] Gableman campaign for his vote in [State v. Richard] Brown, [2005 WI 29], where he cast a vote to overturn a sex predator finding, but the defendant wasn’t released. But, if you look at that decision, which was a 4-3 ruling, he was in the majority with Justice Prosser – something that isn’t supposed to happen, if we use labels or party affiliations as a litmus test.

“That’s because our judges know that when they take the bench, they need to put any former political affiliations aside,” Basting said.

Chance of Success?

Can Siefert prevail? He has a good chance, said Prof. Richard M. Esenberg of the Marquette University Law School.

Under Republican Party of Minnesota v. White, the court will have to determine if there’s a compelling state interest in restricting Siefert’s free speech and associational rights in this way. Siefert is one judge, seeking to join a political party – it doesn’t mean that all judges henceforth would be required to do the same. Esenberg said he just can’t see how judicial independence statewide would be significantly eroded by one judge’s open choice of a political party.

“Judicial elections are difficult because it’s very hard for the candidates to talk about issues that might come before the court in the future,” he said. “Many people do see partisan labels as shorthand for a judicial philosophy. But at the same time, we don’t really want to have a Democratic justice system or a Republican justice system; we just want a fair and impartial justice system. On the other hand, in a number of other states, judges are allowed to use partisan labels, and it’s not clear that their justice systems are any better or worse than ours.”

Esenberg said, “I have an uneasy relationship with judicial elections, although I can’t say that appointment processes are any better. People say things during judicial campaigns that make me cringe – things like the sound of a
slamming jail door in an ad really have nothing to do with what a Supreme Court justice actually does. But, democracy is messy, and what we’re really talking about here is not that judges have to convey a partisan affiliation, but if they should be able to if they want to.”

For his part, Waukesha attorney Terrence R. Berres says that Wisconsin has a long history on a nonpartisan judiciary, going back to the Progressive Era. However, other states have equally lengthy histories of partisan ballots for the judiciary, such as Illinois, and that seems to a workable alternative for their citizens.

“The experience of other states demonstrates that partisan affiliations do not necessarily preclude a quality judiciary,” says Berres, of American Family Mutual Insurance Company.

Further, under the status quo, there are other ways to communicate a political message, such as with labels like “strict constructionist” to convey “conservative,” or by obtaining an endorsement from a labor leader to convey “liberal.”

If Siefert prevails in his lawsuit, those candidates won’t have to resort to such methods, but can just be forthright about their politics.