Let’s Be Honest

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During her address to the Eastern District of Wisconsin Bar Association last month, Judge Diane S. Sykes related the following anecdote from the Constitutional Convention on the issue of how to choose judges:

“As the debate mounted, Dr. Franklin interposed mildly. Only two modes of choosing the judges, he said, had so far been mentioned; it was a point of great moment and he wished other modes might be suggested. He would like to mention one which he understood was practiced in Scotland. He then [according to an account contained in James Madison’s notes], 'in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves.' Here in America, on the other hand, it was the interest of the electors to make the best choice.”

I think it’s safe to say that, if we attorneys had our honest preference, we would like to do it the Scotch way.

The plain fact is that laypersons lack the relevant information and knowledge to make an informed choice about whether Attorney A or Attorney B would make a better judge; or whether Judge A or Judge B would make a better Justice. That is not elitist; it’s the truth.

And it’s a fact that judicial appointments by the Governor are invariably clouded by political considerations that are not relevant to who would make the best judge or justice.

Nevertheless, the system we have in Wisconsin – a sort of hybrid between the two – has served the State well, and we are blessed with a very high quality judiciary.

What I don’t understand is how some of the same people who complain that voter turnout for judicial elections is so low also support “merit selection” – a process that would eliminate voters entirely, and effectively place judicial selection in the hands of State Bar leaders.

I’m glad voter turnout is low, because I don’t consider the electorate well-informed on this issue anyway; the lower the turnout is, the higher the percentage of attorneys there is among those who did vote
(In the same way, teachers are glad when voter turnout for school board elections is low, because it means a higher percentage of support for the union-supported candidates).

But it would be far worse to remove the voters entirely, in favor of insiders chosen by politicians and bar leaders.

Just as the late William F. Buckley quipped that he’d rather be governed by the first 100 people in the Boston phone book than the Harvard faculty, I’d rather have our judges selected by the voters than the hand-picked delegates of State Bar insiders.

I’m being honest here. I consider low voter turnout a feature, not a problem. I want the judiciary chosen solely by attorneys, but only if it is all of us, not our so-called bar leaders.

However, it seems fundamentally inconsistent to complain about low voter turnout, while at the same time, supporting a system that would eliminate the voters altogether.
(The source for Judge Sykes’ anecdote is: Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787, at 66 (Little, Brown and Company 1966)).