Now that a bipartisan proposal to appoint — rather than elect — Wisconsin Supreme Court justices is before the Legislature, a slew of readers want to know more.
And many are skeptical about giving up their vote.
That’s understandable. Wisconsin has ostensibly elected its high court justices for more than a century. But change is needed now because modern-day, ugly, hugely expensive judicial campaigns are destroying trust in our top court and its ability to independently and impartially rule on legal disputes.
Just as bad, the quality of the court is declining because our mud-bath judicial elections favor partisan campaigners over experienced jurists.
Skeptical readers have asked the State Journal a lot of questions about merit selection now that this good-government reform is gaining momentum. Below is a representation of those questions followed by our responses.
Q: Why shouldn’t I get to vote for Supreme Court? That’s democracy.
A: We elect lawmakers and governors to represent us and to fight for our causes. But judges are not supposed to represent constituencies or advocate on issues. Judges are supposed to be above the fray and insulated from the whims of the majority to better protect the rights of even unpopular people.
Q: But isn’t merit selection just the good old boy’s club operating behind closed doors.
A: No. The merit selection system in Arizona, for example, requires all meetings of its judicial selection commission to be open to the public. Merit selection also has increased the number of women and minorities on Arizona’s top court. Even here in Wisconsin, the first woman to reach our Supreme Court and the only black man to ever serve were appointed, not elected.
Q: How’s that? I thought we elected our high court members?
A: Our system of electing judges is largely a ruse. Almost two-thirds of all the justices over the last century reached the state Supreme Court through a governor’s unilateral appointment. That’s because the governor gets to fill vacancies, which occur often. And once those appointees are on the court, they run in subsequent elections as incumbents and almost never lose.
Q: Why would we want to formalize the governor picking cronies?
A: Merit selection would take power away from the governor. When vacancies occur, the governor would have to choose a nominee from a short list compiled by the citizen commission. Then the Senate would have to approve. Checks and balances would be restored.
Q: But who picks the pickers on the judicial selection commission?
A: The resolution now before the Legislature doesn’t answer that question. Ideally, the panel would have staggered terms so no one could stack it. And rules could forbid members from being politically active. Wisconsin places such limits on its Government Accountability Board, a nonpartisan panel of retired judges that already acts as the state’s referee on ethical and election disputes.
Q: Are you so naive to think such a panel won’t in any way be political?
A: No. Merit selection is not perfect. But it is the best way to minimize political influence over court decisions.
Q: Isn’t this just a liberal plot to take over a court that’s narrowly controlled by conservatives?
A: No. A slew of states — both red and blue — use merit selection. And Arizona requires that most of its selection commission members be non-lawyers.
Q: Why not limit special interest spending on judicial races instead?
A: The State Journal has supported several types of campaign finance reform. But no amount of campaign reform will fix what ails Wisconsin Supreme Court elections. The U.S. Supreme Court has ruled that money equals speech, which is protected by the First Amendment. And Wisconsin’s failed experiment with public financing only gave the special interest groups louder voices than before.
Q: Even if merit selection is a good idea, it will never happen. Don’t we even elect coroners in Wisconsin?
A: Actually, a slew of counties across Wisconsin — including Dane — have stopped voting for coroners. They now appoint professionals with medical knowledge instead. A similar shift to appointing the best legal minds to our Supreme Court is now under way.
“Something’s got to happen” to fix the high court’s dysfunction, Gov. Scott Walker said. It’s so bad that one justice has accused another of choking her.
Public confidence in the court has plunged, a new statewide poll suggests.
Merit selection provides the best answer for restoring honor and trust.
— Wisconsin State Journal