All methods of judicial selection must account for and balance the competing goals of judicial independence and judicial accountability. Judge James Wynn, Jr. and Eli Mazur described judicial independence as an “immunity from extra-legal pressures” and judicial accountability as the judiciary’s “responsiveness to public opinion.” A method of selection cannot treat independence and accountability as having equal importance. Independence — immunity from extra-legal pressures — must come at the expense of accountability — responsiveness to public opinion, a form of extra-legal pressure.
The three primary methods of judicial selection in the United States are appointment (either by the executive or the legislature), election, and merit selection. Appointment is viewed as the best method for promoting judicial independence. Election is viewed as the best method for promoting judicial accountability. And merit selection attempts to split the difference by having the executive make an appointment from a pool of candidates selected by representatives of the public.
When the issue of judicial selection comes up in a public forum, the focus of the discussion is typically on how to select judges to a state’s highest court. Wisconsin experienced a public debate on the selection of Supreme Court Justices last spring because of the content of the campaigning and the influx of special-interest group spending during the Supreme Court elections of 2007 and 2008. Judge Diane Sykes summarized the public debate that appeared in Wisconsin’s major newspapers in her speech published in the most recent issue of the Marquette Law Review.
Wisconsin’s system of nonpartisan elections is designed to promote judicial accountability by requiring sitting judges to take part in an election at the end of a judicial term. Wisconsin Circuit Court and Court of Appeals judges serve six-year terms. Wisconsin Supreme Court Justices serve ten-year terms.
In the past two years, Wisconsin’s Supreme Court elections have raised the question of whether electing justices makes them too accountable. The primary fear is that well-funded campaigns and significant special-interest group spending could result in the appearance that cases are decided to directly benefit a justice’s campaign contributors or a supportive special-interest group. In other words, the primary fear is that the justices would be perceived as too accountable — too responsive to public opinion.
But the situation is the opposite for the selection of judges to Wisconsin’s lower courts, the Circuit Court and the Court of Appeals. Instead of a fear that elections result in a Supreme Court that is too accountable, at these levels the fear should be that elections result in a judiciary that is not accountable enough. Elections that in theory increase judicial accountability actually result in lower accountability because, quite simply, most judges run uncontested. If judges run uncontested, the election cannot be viewed as increasing accountability — responsiveness to public opinion. And because a decrease in accountability results in an increase in independence — immunity from extra-legal pressures — a system that is designed to promote accountability in practice promotes independence. To support this theory, I reviewed Wisconsin’s judicial election results from 2000 through 2008 to determine how often an incumbent judge faces an opponent in a contested election.
From 2000 to 2008, there have been 369 Circuit Court elections in Wisconsin. In only 33 elections, or about nine percent of all Circuit Court elections, did the incumbent judge face a challenger. And in only eight elections, or about two percent of all Circuit Court elections, did the challenger unseat the incumbent judge.
From 2000 to 2008, there have been 26 Court of Appeals elections in Wisconsin. In only three elections, or about 11.5 percent of all Court of Appeals elections, did the incumbent judge face a challenger. And in only one election, or about four percent of all Court of Appeals elections, did the challenger unseat the incumbent judge. In fact, in 2007, an incumbent judge filed a notice of non-candidacy and the “election” for the open seat consisted of one candidate running for the open seat.
I did not review Wisconsin’s election results to disparage the members of the Wisconsin judiciary or question any judge’s fitness for office. Instead, I hope to highlight the disparity between what judicial elections are designed to promote — judicial accountability — and what Wisconsin’s elections appear to actually achieve — judicial independence. Because so few lower court judicial elections are actually contested, the judiciary is isolated from accountability much like a judiciary selected by an appointment system. When judicial selection again becomes a hot topic of public debate, it is important that any proposed reforms to Wisconsin’s election system extend to the selection of judges at all levels of Wisconsin’s judiciary and not just the Supreme Court level.