Yesterday, State Representative Mark Gottlieb (R-Port Washington) announced that he is drafting a constitutional amendment to replace Wisconsin’s current method of judicial elections with “merit selection.” Rep. Gottlieb is a former speaker pro tem of the Assembly, and he is widely regarded as one of the top policy gurus within the Republican caucus.
Currently, the legislature is seriously considering public financing
of judicial elections (a topic on which Prof. Esenberg has written
extensively). Rep. Gottlieb is offering his amendment as an alternative to public financing as it comes to the floor in the near future. Rep. Fred Kessler (D-Milwaukee) offered his own judicial selection amendment earlier this session. Both Gottlieb and Kessler differ from the typical “Missouri Plan” merit selection system. Under Kessler’s plan, the governor would appoint a justice with the “advice and consent” of a majority of the State Senate for a ten-year term. As that term is coming up for expiration, a justice who wishes to continue may do so unless at least thirteen senators reject the proposed renewal. Under Gottlieb’s plan, the governor must select his nominee from current circuit court and appellate judges who have served at least eight years on the bench. The nominee would then need to be confirmed to the ten-year term by a twenty-vote (3/5) majority in the state senate. At the end of the ten-year term, and each subsequent ten-year term he or she desires, the justice would have to run in a retention election. Neither the Kessler nor the Gottlieb plan would change judicial selection for the court of appeals or circuit courts.
Let’s start by stating what’s good about both of these proposals.
First, they’re constitutional amendments. In some states, it has been argued that a “retention election” fulfills a constitutional requirement to elect justices, and therefore a merit selection system may replace traditional contested elections by statute. As a recent article in State Court Docket Watch (disclosure: I am employed by The Federalist Society, publisher of SCDW) points out, the history of efforts to change judicial selection in Wisconsin is that they have all been proposed amendments. Thus, if this change is to be made, it should be done by constitutional amendment, and these proposals recognize that reality.
Second, both of these proposals reject a flawed, elite/insider commission system in favor of a more politically accountable gubernatorial appointment model (although still less politically accountable than direct contested election by the people).
My own sense of the lay of the political land is that while the
Gottlieb and Kessler amendments are both thoughtful proposals to
change judicial selection, and have the added benefit of being free,
the major support for reform currently lines up behind public
financing. The Court endorsed it in a public letter last year, the major election reform groups are behind it, the various legislative committees are moving on it, and it can be done now by statute. Of course, there’s no guarantee it will be enacted, and even if it is, that it will work (I personally am sympathetic to many of the arguments that I expect will be made in Prof. Esenberg’s forthcoming HJLPP article).
In related news, the Supreme Court of Wisconsin will consider similar
questions next week when it takes up the Wisconsin Manufacturers & Commerce, Wisconsin Realtors Association, and Wisconsin League of Women Voters petitions for a rule regarding campaign contributions and judicial recusal. We’ll see many of these same issues aired in those briefs and discussions, and I’d be interested if any of the professors, either
the con law folks or the legal ethics folks, would blog on those three
petitions. Additionally, readers who are interested in these questions
should plan to attend Plenary Panel 1 at the upcoming MULS Conference on the Wisconsin Supreme Court.
Second, both of these proposals reject a flawed, elite/insider commission system in favor of a more politically accountable gubernatorial appointment model (although still less politically accountable than direct contested election by the people).
Wait a minute. Since when is it a good idea for judges to be held “politically accountable” for the decisions that they make? I think politics should be as far away from the judiciary as humanly possible!
Look, in a perfect world, I would agree with you on the “13 senator rejection” plan. And I still will, if you can assure me that not a single senator will oppose a justice before them because, say, they receive a lot of funding from Johnson Controls and the justice has ruled against Johnson in several decisions. If you can’t, and we make the tenure of judges a political matter — either based on the ideologies of senators or of the general populace — you’re looking at another Gableman fiasco, and surely you can agree that that brouhaha was an enormous black eye for the Wisconsin Supreme Court.
Imagine if the U.S. Supreme Court was an elected body (and that your number is increased; if we have 13 of 33 senators who need to approve it in Wisconsin, I think we’d need to have that same 1/3, or 33, senators in the U.S. Senate). Do you really think we’d have cases like Miranda, Gideon, or Terry if Chief Justice Earl Warren had had to deal with attacks for being “soft on criminals”? Yet would you deny that these three cases are not only landmark decisions, but also very important Constitutional safeguards? Do you really think we wouldn’t have widespread gay rights by now if presidents like Obama could simply start a political movement to oust Justices like Scalia and Thomas?
The beauty of lifetime appointments with only a general incompetence clause permitting the judge’s removal is that it frees judges from the bipolar nature of public opinion. It may have its share of problems, I’ll grant you, but — to appropriate a Winston Churchill quote slightly — “It has been said that [this] is the worst form . . . except all the others that have been tried.”
As an East Coast transplant, I have never warmed to the Midwestern preference for the election of judges. I was almost convinced of the merits of judicial election by the late Justice Heffernan many years ago, when he defended the process in a speech at the Law School, but I think that even he would have been disappointed at the tone of the more recent election campaigns here in Wisconsin.
My primary objection to the proposal that you describe is that it is a mistake to limit the pool of potential justices to those who have eight years experience as a circuit or appellate judge. This is obviously self-serving, but I believe that sitting judges have an over-proportionate representation of criminal and family-law experience, and that the development of other areas of the law (i.e., corporate law) would benefit from opening the pool of potential appointees to practicioners and law professors.
Those who wish to hear me express some of my misgivings about the corporate law opinions of the Wisconsin Supreme Court can attend next week’s conference.
Hi, Andrew,
Perhaps unsurprisingly, I’m going to disagree with several of your contentions. First, I don’t see the Gableman-Butler election as a fiasco. Two candidates ran for the Supreme Court, one won, the other lost, this is how elections are set up to work. I assume you think that race was a “fiasco” because of the negative tone in some of the advertisements — ads run in support of both candidates. Campaigns often take negative tones, not just in judicial races, and voters ought to know information that will affect their judgment of a candidate. We should want robust, open, vigorous campaigns for our public offices — the voters are smart enough to sort out the many messages they receive.
In fact, I’m with Jim Sensenbrenner — I think the fiasco is that President Obama has nominated for the Western District federal bench a judge who has been twice rejected by the people of Wisconsin as a liberal activist.
Second, there are an awful lot of folks who think that Chief Justice Warren and the Court he led got an awful lot of cases very wrong. And the people did respond by electing President Nixon, who promised “strict constructionist” judges and gave us Wm. Rehnquist.
Third, I highly doubt that an effort to politically oust Scalia or Thomas would succeed, particularly if the issue focused exclusively on gay rights. In every state where a marriage amendment has been on the ballot, it has passed, and often by wide margins. One man, one woman marriage is still the norm in 44 of the 50 states and the public position of President Obama.
The problem with lifetime tenure is that it “frees” judges from any external constraint on their ability to impose their personal vision of what American society ought to look like.
I think it’s interesting that Chief Justices Heffernan and Abrahamson both advocated for judicial elections — the current Chief doing so in marked contrast to Justice O’Connor, as those who attended their conversation in the Helfaer Theater may remember.
One way in which this issue is interesting to watch is the way it cuts across ideological lines. There’s the “progressive” desire to elect all kinds of offices, but there’s also a strong “progressive” tradition that we ought to depoliticize policy and just “trust the experts.”
It also cuts across more practical lines, as civil libertarian liberals conflict with “good government” liberals over free speech values.
The lawyer for WMC in its petition for a rule on independent expenditures is Mike Wittenwyler, who was campaign manager for Russ Feingold (Mr. McCain-Feingold) in the 1998 cycle. Wittenwyler’s clients in a joint letter to the Government Accountability Board on a judicial elections rule included two big Democratic groups — Greater Wisconsin Committee and Wisconsin Education Association Council (WEAC) — which engage in independent expenditures in judicial campaigns.
Prof. Fallone, I heard your misgivings about corporate lawyers on the Court in your business associations class as a 2L, and sympathize.
I assume you think that race was a “fiasco” because of the negative tone in some of the advertisements — ads run in support of both candidates.
To a degree, yes. But my concern is more with the one very famous ad. We’ve skirmished on this before, so you know where I stand on it; I won’t rehash the blow-by-blow. But even now Gableman admits the facts of the case were (and I use this term charitably) misstated in the ad. I don’t care whether you’re black or white, liberal or conservative, tall or short: there is simply never a justification for running that kind of ad. If Butler had ran that ad, I’d have excoriated him for doing so without hesitation. So, either Gableman didn’t call the WMC out on the ad because he agreed with it (in which case, he’s disingenuous and a terrible model for justice), or — to give him the benefit of the doubt — he felt he had to support it in order to win the election. Either way, it clearly shows why the election process is terrible for this, and either way the Supreme Court is embroiled in a controversy that harms its ability to decide the law.
We should want robust, open, vigorous campaigns for our public offices — the voters are smart enough to sort out the many messages they receive.
No, they’re not. You know they’re not. If they were smart enough, why would anyone choose to go negative in the first place? When a notable percentage of the American voting public couldn’t even pass the citizenship test given to immigrants hoping to become naturalized citizens, how on earth do you expect them to be able to understand the difference between scurrilous attacks and factual points? And, if you need proof of that, you can look at the fact that you came to the defense of the aforementioned ad in your response despite the fact that I’ve seen you post the text of the Jensen case in previous posts you’ve made, and you know as well as I do that the legal point Butler made was completely with merit.
Second, there are an awful lot of folks who think that Chief Justice Warren and the Court he led got an awful lot of cases very wrong. And the people did respond by electing President Nixon, who promised “strict constructionist” judges and gave us Wm. Rehnquist.
Let’s note that you used the incredibly vague phrase “an awful lot of cases very wrong.” How about the cases I mentioned? Do you think the Warren Court was wrong to say that someone arrested and detained for questioning should be advised of his rights to counsel and to remain silent? How about the whole idea that those charged with crime have the right to have counsel appointed if they can’t afford it? Or that the police need to have reasonable suspicion before they can stop and/or search a person? I picked those cases for a reason; all of those are fundamental tenets of the criminal justice system, and none of those are popular ones. Do you really think the Supreme Court would have had the conviction to make these decisions if they had to be re-elected? And how would your propose they be re-elected anyway? And, really, who outside of lawyers truly understands the nuances of cases anyway? Certainly not the general public.
As for Nixon’s election and subsequent appointment of Justice Rehnquist, let me remind you that Rehnquist made the unpopular decision of limiting Congress’s ability to regulate guns via Interstate Commerce in Lopez, and he took a lot of grief for it. Granted, I don’t disagree with his argument at all, but I know a lot of people who did. Do you really believe he’d have survived an election with “soft on guns” hanging around his neck?
Third, I highly doubt that an effort to politically oust Scalia or Thomas would succeed, particularly if the issue focused exclusively on gay rights. In every state where a marriage amendment has been on the ballot, it has passed, and often by wide margins.
I didn’t say gay marriage though; I said gay rights. And perhaps it was a poor example. But, really, you don’t have to search very hard to find cases that Scalia and Thomas have ruled on that engender major public discontent. If there ever was a re-election campaign for Scalia, we’d be seeing non-stop clips of his obscene gesture on every news station but Fox News. Plus — and this is a personal opinion, not one that I can support with statistical data — I strongly suspect that if we had had elections for justices in the first place, Scalia never would have made it past the American people. And that would be a shame, because while I don’t always agree with his opinions, I’ve got no doubt that he’s a brilliant jurist.
The problem with lifetime tenure is that it “frees” judges from any external constraint on their ability to impose their personal vision of what American society ought to look like.
Sure, but I can spin it just as easily as you can to note that the benefit is that they are free to decide issues of law based on the law rather than whatever public opinion holds this week. But more to the point, I didn’t ever say there weren’t problems with lifetime appointments. However, people far wiser than us long ago realized that the process for electing judges was going to have to be a “lesser of two evils” thing, and the problems with your idea are far more serious than the problems with mine. Your concern is that an intelligent jurist will ignore the law for his own personal ideologies; mine is that a group in which the majority couldn’t even name the justices on the Supreme Court will be overseeing its decisions, ones that lawyers with 20-30 years under their belt don’t always grasp. I’m not opposed to some politics on the court; I’m opposed to all of it, whether I agree with the politics or not.
Both the ’08 and ’09 elections taught us that judges aren’t held accountable for the decisions they make, they’re held accountable for absurd caricatures of the decisions they make, deliberately misleading statements of the decisions they make, and, in an instance disingenuously concocted by none other than the author of the above blog post, decisions made independently by other judges in other States based on other than Wisconsin law.
It’s a great system, alright.
Unfortunately the system’s recent participants have taken it upon themselves to behave in a manner that not only captures the attention of the Wisconsin Judicial Commission but would likely raise eyebrows among the State Bar’s character and fitness examiners, were the latter’s standards capable of being retroactively applied.
So, either Gableman didn’t call the WMC out on the ad because he agreed with it (in which case, he’s disingenuous and a terrible model for justice), or — to give him the benefit of the doubt — he felt he had to support it in order to win the election.
WMC did not run the Mitchell ad. It was run by the Gableman campaign. (That’s why he is defending disciplinary charges.)
I am an agnostic on judicial elections. I would be more sympathetic to Mr. Golden’s view if I thought that depoliticized judicial selection (assuming that is possible) would lead to a depoliticized judiciary.
But, regardless of my view, these proposals are going nowhere. Rightly or wrongly, there is overwhelming popular support for the election of judges.
Ed is spot on about the overemphasis of judicial experience in selecting justices for the Court. There are two members of the current state supreme court who were not circuit court of court of appeals judges before becoming justices and I don’t think anyone would challenge their qualifications.
Let me take each of your concerns in turn, Andrew. As for the Gableman campaign ad, in some sense, the “election process” is not “terrible,” but rather, it worked exactly like it is supposed to. After running that ad, Gableman was excoriated by the editorial boards, and even his allies on the right (Esenberg, Sykes, me) said it was a bad idea to run the ad (although we did not think it was racist). The ad featured prominently in many newspapers’ decisions to endorse Butler. And some voters who may have voted for Gableman otherwise did not do so because of the ad. But a majority of voters still decided that they’d rather have a conservative justice who ran one ill-advised TV ad than a liberal activist who was legislating from the bench.
Voters should know information about the candidates they’re choosing between, the good and the bad. In a congressional election, almost no candidate would run TV ads saying “Vote for me, I like tax hikes.” So it falls to his opponent to say “My opponent will raise your taxes.” This may be characterized by some as “negative campaigning,” but it’s also important information for voters to know when deciding between candidates.
And though every voter may not read the opinion or the briefs in the Reuben Lee Mitchell case, we do have a press corps that loves to run “fact check” segments and side-bars whenever a new TV ad comes out of a campaign. And the other side can respond by running an ad itself: “My opponent is lying about my record.”
As for the Warren Court – you should not conflate constitutional commands with good policy. I do believe that the state should provide counsel to indigent defendants as a matter of policy. I do not believe that the Sixth Amendment was originally intended or understood to require it. I do believe that the police should advise arrestees of their rights. I do not believe that the Constitution requires that they do so (see the Harlan dissent in Miranda and the Scalia dissent in Dickerson). And as a footnote, let me say that I think states rights polls well, and gun control polls poorly.
Let me also say for the record that I’m with Rick on being agnostic on judicial elections. Though I have other issues with the Kessler and Gottlieb proposals, I don’t think gubernatorial appointment is a bad system – certainly as compared with Missouri-style merit selection.
While depoliticizing the judiciary is a nice goal, what I consider judicial politics, many (perhaps yourself included) would merely consider appropriate judicial interpretation.