Republicans in the Wisconsin Senate approved a proposal Tuesday to amend the state constitution to allow state Supreme Court Justices to elect their chief every two years.
The chief justice position now is bestowed on the justice with the most experience. Chief Justice Shirley Abrahamson has held the position since 1996.
The proposed amendment must be passed twice by the Legislature and approved in a referendum to take effect.
State Sen. Robert Wirch, D-Kenosha, said Republicans often complain of “activist judges.” He said the idea of tampering with the system used to appoint the chief justice was coming from “activist legislators.”
“What about the separation of powers?” he said Tuesday. “We should not be telling them what to do. It’s a very dangerous precedent when we start telling the Supreme Court how to run their business.”
State Sen. Mary Lazich, R-New Berlin, said the process of passing an amendment is about letting voters decide what is best.
“The public will make this decision,” she said. “To deny the public that opportunity, that, I think, would be very wrong of us.”
State Sen. Jon Erpenbach, D-Middleton, called the proposal the “Shirley” amendment, referring to Abrahamson and his belief that Republicans are proposing the change solely to oust her from the chief justice spot. He told the Senators the leader of the court has very few formal powers.
“Now you want to take it way from one person,” he said. “Not that you are concerned about the state of the court or the constitution. You just don’t like the person that is here right now.”
The chief justice only has one vote among seven to set the case calendar and has no power to choose which justice will write a particular opinion. That assignment instead is done by the drawing of lots.
State Sen. Jennifer Shilling, D-La Crosse, noted that the justices with the next most seniority are Justices Ann Walsh Bradley and N. Patrick Crooks, who often both are seen as making up the liberal wing of the court. Many observers pit those justices against a conservative bloc consisting of Justices Pat Roggensack, Michael Gableman, David Prosser and Annette Ziegler.
The Senate Democrats offered an amendment that would require justices to recuse themselves from cases at times when a reasonable person would think contributions to their elections campaigns could bias their judgment or has received a donation of at least $1,000 from a party appearing before the court. The proposal was not considered because it was deemed not germane to the constitutional amendment.
The recusal issue came to the forefront after it was revealed that Gableman had received free legal advice from the law firm Michael Best & Friedrich, which went before the high court to seek the overturning of a stay on the 2011 law stripping most public workers of their collective bargaining rights. Gableman did not recuse himself and the state Supreme Court eventually overturned the stay.
The Republicans offered their own amendment, one eliminating a provision that would prevent a justice from having the chief’s title for more than three two-year terms in a row. The amendment was approved on a voice vote.