“Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

On June 24th, the Wisconsin Court of Appeals ruled against a woman seeking legal recognition of her parental rights for the two children she adopted with her ex-partner. The two women adopted their children in 2002 and 2004 from Guatemala. The woman appealing, known in the record as Wendy, stayed at home with the children, while her partner, recorded as Liz, worked as an attorney. Liz was the legal adoptive parent so that the children could be on her healthcare plan. When the couple split up, the two women agreed to an informal custodial arrangement, but Wendy has no legal rights over or to her children. When Liz stopped allowing Wendy to see the children, Wendy lacked any legal recourse.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here.

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Mother and Daughter, Justly Proud

Wisconsin Supreme Court Justice Pat Roggensack and Milwaukee County Circuit Judge Ellen Brostrom are wary of almost all of the labels that people try to put on them and on other justices and judges.

But one label they are proud of is mother and daughter, and that was clear Thursday during an “On the Issues with Mike Gousha” session at the Law School. The two are believed to be the only mother and daughter to serve on the bench at the same time in Wisconsin history, Gousha said.

“You’ve just been an incredible role model for me,” Judge Brostrom told her mother. Justice Roggensack said she never intentionally put her daughter on the path to being a judge, but she agreed she was very pleased when Bostrom narrowly won election in 2009.

When Gousha asked how the two of them react to labels such as “conservative” or “liberal” when it comes to describing judges, Justice Roggensack said, “I think it’s a lazy definition.” The use of labels reflects the high degree of partisanship of the times, especially when it comes to elections. She said labels are useful in negative campaigning, which is the way campaigns “can hit hardest fastest.”

Most cases that come before the state Supreme Court don’t fit on a liberal-conservative axis, she said.

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We Elect Judges, Don’t We?

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

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