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Editorial: Look for a judge who hasn’t made up mind

Wisconsin state Supreme Court candidates Waukesha County Judge Jennifer Dorow (from left), former Wisconsin Supreme Court Justice Dan Kelly, Dane County Judge Everett Mitchell, and Milwaukee County Judge Janet Protasiewicz participate in a candidate forum at Monona Terrace in Madison. (John Hart/Wisconsin State Journal via AP)

A good judge is going to disappoint you sometimes.

Remember that when you go to the polls this spring to elect a new Wisconsin Supreme Court justice.

It might seem odd or counterintuitive to support a candidate willing to go against your causes and interests at times. When you vote for a mayor, state lawmaker or governor, you want those leaders to fight for specific policies and priorities.

But judges are different. They don’t represent constituents, at least they’re not supposed to. Nor should they prejudge cases or causes. Their job is to settle complicated legal disputes by following and interpreting the law as independently as possible.

Judges are arbiters, not advocates. And state law, adopted and revised over more than a century, doesn’t neatly match anyone’s narrow political agenda. That’s why good judges will sometimes rule against their supporters’ and even their own personal views.

So tune out the attack ads and tame your political reflexes when you vote Feb. 21 in the high-court primary and April 4 in the spring election. Instead of supporting a loyal liberal or a committed conservative, look for a thoughtful judge with an open mind. Look for somebody willing to listen carefully to the evidence and then use reason to make good decisions.

The more a candidate telegraphs how they’re going to vote on controversial cases, the less likely they are to be fair and improve trust in our judicial system.

Voters will face lots of distractions in the coming weeks because the stakes for the court are especially high. The winning candidate April 4 could tip the perceived tilt of the court in one ideological direction or the other. That could make a difference in, for example, the legality of abortion, gerrymandering and more.

Already, the Republican-run Legislature is trying to manipulate the electorate by adding referendums about welfare and bail to statewide ballots. It’s an obvious ploy to pull more conservative voters to the polls for a spring election that typically draws lighter turnout.

Democrats are playing similar games. Gov. Tony Evers wanted to add an abortion referendum to ballots to engage more liberal voters, and Dane County supervisors plan to ask — again — if gerrymandering is bad, and if abortion should be legal.

A mountain of money will be poured into the high-court race, much of it by special interests whose cases may come before the court in the future, creating potential conflicts of interest and damaging trust in an independence judiciary. That’s why the State Journal editorial board has long favored appointing judges based on merit, rather than electing judges based on their ability to raise lots of money and appeal to political interests.

But voters have to make a choice this spring, and our editorial board will, too. After the field is narrowed to two finalists, we plan to invite both primary winners to meet with us before we recommend the best candidate to voters.

Political ads will try to tear down the candidates’ records, with lots of scary talk about crime. Just remember that the high court almost never deals with criminal cases, including lengths of sentences or parole. Trial and appeals courts handle most of those decisions. The state Supreme Court primarily rules on civil cases.

Four candidates are seeking to fill the high-court seat that Justice Pat Roggensack is vacating. They are Waukesha County Judge Jennifer Dorow, former state Supreme Court Justice Dan Kelly, Dane County Judge Everett Mitchell and Milwaukee County Judge Janet Protasiewicz.

Have any of these judges ruled in ways that ran counter to their personal beliefs? We hope so and plan to ask them.

Justice Brian Hagedorn, elected in 2019 to a 10-year term, is a good example of a jurist who seems to take his independence seriously by going into every case without prejudging the outcome for his partisan pals.

That’s why he’s often considered a swing vote who sometimes disappoints the many Republicans who voted for him.

Hagedorn, for example, dissented when his conservative colleagues struck down an extension of the governor’s restrictions on public gatherings at the start of the pandemic. Before that, he refused to speed a decision to purge as many as 200,000 people from voting rolls, a case brought by conservatives.

Our judges are the deliberative referees of civil society. They shouldn’t pick political sides. Neither should voters demand political allegiance when picking a judge.

— From the Wisconsin State Journal

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