The idea of the judiciary as independent guardians of the rule of law has taken a beating in Wisconsin in recent years, amid highly contentious state Supreme Court races and the widely publicized divisions within the state Supreme Court.
What plan with a realistic chance of being enacted could help restore respect for the judicial branch of state government as separate from politics?
That premise and that question shaped the work of a four-member task force of the State Bar of Wisconsin, and what the task force recommended recently is a plan that would be unique in the nation: Election of state Supreme Court justices to 16-year terms, without any opportunity to run for reelection.
The four members of the task force described how they settled on that proposal in a recent “On the Issues with Mike Gousha” program at Eckstein Hall.
Tom Shriner, a commercial litigator in Milwaukee and former president of the Seventh Circuit Bar Association, said that creation of the task force started from the strong reaction “on the part of lawyers throughout the state, on every side of the question imaginable, to what they saw going on with the [Wisconsin Supreme] Court . . . . and their demand that the bar do something about this.” Shriner is also an adjunct professor at Marquette University Law School.
“It is a very simple change, but it could have really profound influence on the way our courts are put together in the future,” said Christine Bremer Muggli, a plaintiffs’ personal injury attorney in Wausau and former president of the Wisconsin Association for Justice.
Joseph Troy, a former Outagamie County judge now in private practice, chaired the committee. He said the conditions in Wisconsin “have resulted in a blurring of the lines of separation of power” between the judicial, executive, and legislative branches.
This led the group to this question, as Troy put it: “With the dynamics of elections and the law that exists, is there a way that we can improve the clarity of the role of the judiciary, which is to be the independent guardians of the rule of law, and to not be beholden to politics of any kind?”
The answer the task force members agreed on and proposed would be a transition to a system they hope will lead justices to focus only on their work as justices because they would have no need to worry about future campaigns or potential campaign donors. The unrenewable 16-year term (“it’s four governor’s terms, it’s four presidential terms,” Shriner said) would encourage justices to act with independence from political pressures.
Troy said, “When a justice is once elected, they never again become a politician for that job – they’re just a justice. Their only job is to enforce the rule of law for their entire term.”
Catherine Rottier, who practices in Madison and who is a former president of the Wisconsin Defense Council, said, “It’s not a left or right plan . . . . It is a good government idea.” The four members of the task force are themselves a diverse group when it comes to political views. That was intentional, Troy said.
Shriner said the task force did not back ideas to select justices and other judges on a merit system because the members did not think Wisconsin voters were willing to give up the right to vote for Supreme Court justices in statewide elections. And the task force did not propose taking away the power of governors to fill vacancies on the court because governors, regardless of their party, will not agree to that. The goal, task force members said, included proposing a plan that would avoid certain failure in the political process, which would be the case for proposals for merit selection of justices.
The plan has been overwhelmingly endorsed by the Board of Governors of the State Bar of Wisconsin, which task force members said was encouraging. The bar now wants to begin to promote the proposal to legislators and the general public.
The plan would require changing the state constitution, which requires passage in two consecutive Legislatures and then approval in a statewide referendum. While that means the change will not come quickly, task force members said they believed the need to have an independent judiciary would persuade people in the long run of the plan’s merits.
The 16-year term proposal is a separate matter from a different constitutional change which was endorsed in recent weeks by both houses of the Legislature. That proposal calls for the seven Supreme Court justices to elect a chief justice from within their ranks. Currently, the chief justice is automatically the justice with the most seniority. Support for that proposed constitutional revision broke sharply along party lines, with Republicans saying it was a better way to the run the court and Democrats saying it was a veiled attack on current Chief Justice Shirley Abrahamson.
Members of the bar association task force said they were optimistic that consideration of their unrelated plan would avoid triggering such partisan divisiveness.