It is hardly a revelation, but the Laurel Walker of the Journal Sentinel has done a study demonstrating that a bit more than half of the circuit judges in the five county area assume the bench by appointment, rather than election. This is an important aspect of judicial selection in our state and the paper does a service by informing the public (and, I suspect, much of the bar) of the fact that many of our judges are selected, in the first instance, by the Governor and not the electorate.
My colleague, Peter Rofes, is certainly correct to note that, in some sense, this demonstrates that a “harsh dichotomy between so-called elector systems and appointment doesn’t really exist.”
But, while I agree that the dichotomy may not be harsh, it remains significant. While the Journal Sentinel is correct to note that challenges to sitting judges are rare, they are more frequent (although still probably not very frequent) when the incumbent is a sitting judge who has not yet faced the electorate. I supervised a study of that a number of years ago in defending a challenge to Wisconsin’s system of electing judges under the Voting Rights Act. My sense is that things haven’t changed much.
This is where the dichotomy reasserts itself and does so in at least three ways. First, governors know that their appointees are subject to electoral challenge and the electability of prospective judges is a consideration in choosing appointees. Second, although incumbency in and of itself confers certain advantages, it is not as strong for new appointees. Every new judge knows that securing an uncontested election is not a matter of happenstance and, in many (if not most) cases, must be made to happen. The first order of business is to line up support and fundraising to dissuade potential challengers. Every judge knows that the absence of a challenger often requires hard work. Third, while challenges are not frequent, they are not unknown and they do happen. Appointed judges get beat. Everyone knows this and that has – for better or worse – an “accountability” impact on newly appointed incumbents.
So, if the study were to be used to argue that we don’t “really” elect judges anyway and so we should accept Sandra Day O’Connor’s invitation to drop our electoral system, I think that the situation of the ground is far more nuanced. In any event, there is, rightly or wrongly, a strong public commitment to electing judges. I do not see our system changing any time soon.
Although it is beyond the scope of the Journal Sentinel’s study, I think it would be interesting to consider why so many circuit court vacancies occur. We don’t see half of other public offices becoming open during the incumbent’s term of office.
Part of the answer, I think, would be that new branches have been created during this period so the number of vacancies is less than half. Still, the vacancy rate would remain well above what we see for other elected offices.
Is their just more career dissatisfaction among circuit court judges leading to more resignations? Is it the length of a judge’s term? Does the fact of gubernatorial appointment create incentives for sitting judges to time their retirement in order to create an opportunity for lawyers of the same party?
Cross posted at Shark and Shepherd
I think it’s also important to note that circuit court judges have far less power to affect the law than appellate judges, particularly Supreme Court justices. As Justice Prosser noted in an excellent concurrence to the second Action Wisconsin opinion (2008 WI 110, 63), “A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections.” Because circuit court judges aren’t “in the vanguard” of making law, we shouldn’t be surprised that incumbents face minimal competition for seats.
Professor Esenberg;
Something you wrote in this struck a chord with me: “Appointed judges get beat. Everyone knows this and that has – for better or worse – an ‘accountability’ impact on newly appointed incumbents.”
At first glance this would seem to be a good thing–judges accountable to the electorate. But does this mean that elections make better judges? Do judges avoid “getting beat” by doing a better job?
Apparently not. Just prior to the above quote, you wrote, “Every new judge knows that securing an uncontested election is not a matter of happenstance and, in many (if not most) cases, must be made to happen. The first order of business is to line up support and fundraising to dissuade potential challengers. Every judge knows that the absence of a challenger often requires hard work.” What you omit is that if there IS a challenger, the new judge will have to work even harder at lining up support and fundraising.
All this may be hard work, but it’s not the hard work these judges were appointed or elected to do. More importantly, judges don’t magically “line up support” nor raise funds; they do it by making promises for future delivery. An elective judge is, first and foremost, a politician.
This of course is where the question of judicial recusal pops up again, an issue that has been discussed many times on this forum. If a judge owes their continuation on the bench to money donors, that judge will have to be a saint to avoid improper influences from his supporters when they have a special interest in the outcome of a case. Generally, we do not elect people on the expectation they are saints, and judges are no exception to that rule.
Except where the campaign funds are too small to be significant, or where several supporters have conflicting interests, a judge who has received significant money donations from parties interested in the outcome of a case should have to recuse so as to avoid the appearance of impropriety casting doubt on the reliability of the Judicial System.
Daniel Suhr makes a good point in his commentary; at the Circuit Court level, elective judges have far less power to affect the law. The invidious effects of electioneering might be tolerable there, but it is not so at the Supreme Court level.
Unfortunately, judges on the higher courts often come from the lower courts. Electioneering at the lower level can instill bad habits that are not easily shed once a judge is at the appellate level.
As the student blogger last March, I researched and wrote about judicial elections in Wisconsin. My post focused on judicial independence and accountability in an elective system where very few judicial elections are actually contested.
I didn’t analyze the data I collected for the rate at which appointed judges were challenged, but did find that very few judicial elections are contested and even fewer result in the incumbent’s defeat.
Last March, I wrote:
“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.”