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The good, bad, worse news to come from the Supreme Court election

By: GREGG HERMAN//April 19, 2023//

The good, bad, worse news to come from the Supreme Court election

By: GREGG HERMAN//April 19, 2023//

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Gregg Herman is a neutral arbitrator and mediator at JAMS located in its Milwaukee office, specializing in resolution of family law disputes. A past chair of the ABA Family Law Section, Herman is a certified family law mediator, a senior Family Law trial Specialist by NBTA and an adjunct professor at Marquette Law School. He can be reached at [email protected] or [email protected].

Much as I like to vary topics in my monthly column, the recent Wisconsin Supreme Court election presents too much fodder for comment and is too important to simply let it go.

First, the good news: The election means no more ads! I am so sick of the other side being called an extremist and “he/she is not for us” (whatever that means). There is a saying that the only good thing about banging your head against the wall is that it feels good when you stop. That’s the same good feeling I got when I turned on my TV the day after the election.

Now, the bad news: There will be more judicial elections.  Lost in the all the coverage of the Supreme Court race was the shocking result for District 1 Court of Appeals election where the incumbent, Bill Brash, lost to challenger Sara Geenan by a margin which made the Supreme Court election look like a squeaker. There is a message that in today’s toxic political environment, incumbents are vulnerable.

With three judges retiring from the Milwaukee County Circuit Courts, including Judge Protasiewicz, that may be an invitation for, shudder, more contested judicial elections.

Now the worse news: You don’t win elections by being a nice guy. There was nothing “nice” about either campaign. Is that bad? That is an irrelevant question. This is politics and just as all is fair in love and war, all is fair in politics (which is a lot more like war than love).

A number of years ago, the Wisconsin Supreme Court had the opportunity to apply rules regulating truth in judicial advertisements, but it deadlocked when the winning judge (Justice Gableman) recused himself (In the Matter of Judicial Disciplinary Proceedings Against the Honorable Michael J. Gableman, 2010 WI 62). The results are that there are no rules, other than the law of the jungle.

Is this a good way to choose judges? Of course not. The public has no way to discern from advertisements the qualities which are essential for a good judge. Rather, the public only knows that lawyers sometimes represent bad people and judges make what seem to be lenient sentences.  While there is no perfect way to select judges (other than my doing so personally), the Missouri Plan, otherwise known as the Non-­Partisan Court Plan, where lawyers are nominated by a judicial commission and then selected by the governor (subject to a later retention election) would be a substantial improvement. Don’t expect that to happen in Wisconsin anytime in the near future. Or in the distant future. That’s a shame since the quality of a judge is so fundamentally important to our legal system.

We are fortunate in Milwaukee County that most – by far – of our judges are intelligent, compassionate and diligent. But this has not always been the case and may not be the case elsewhere or even for the future. And this is far too important a determination to leave to who can raise the most money. Or worse, run the nastiest campaign.

These comments are not intended to disparage either candidate. Both played according the rules – or lack thereof. As the saying goes, you don’t bring a knife to a gun fight. If a candidate wants to win – and why run otherwise – you have to do what it takes to do so, no matter how much nastiness it requires.


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