Tuesday, April 19, 2011

The Real Debate Over How To Pick Judges

Less than a week ago, the Wisconsin State Journal published the latest in a three-year-long string of editorials calling for Wisconsin to stop electing judges. This came just over a week after the newspaper ran an editorial headlined "Wisconsin Supreme Court elections must go."

The State Journal started its editorial crusade in support of "merit selection" of judges in January 2008 and has been devoting copious amounts of ink to the topic ever since. A Google search for "Wisconsin State Journal and merit selection" a few moments ago produced 57,400 results. There has been a steady stream of editorials with headlines like "Judicial elections are a ruse" and "Let merit replace mud in Wisconsin Supreme Court selection process" and "Keep partisan politics off the court" and "Restore public's trust in court."

The real ruse is the idea that merit selection will remove politics from judicial selection. Under a merit selection system, a nominating commission is established. The commission reviews applicants and the commission's selection is appointed, usually by the governor. Then after the appointee has served in office for a period of time, a "retention election" is held to allow voters to decide whether the appointed judge should remain on the bench.

Where merit selection has been put in place, it has been far from free of politics. Missouri's nominating commission has come under attack for being too partisan, too easily manipulated by legal insiders, as well as insufficiently diverse and consequently unfair to minority applicants. And retention elections look conspicuously like plain old every day judicial elections. You need look no further than Iowa for evidence of that.

Another real ruse is that merit selection is remotely doable in our state. More than three years worth of editorials has moved the public policy debate in Wisconsin over judicial selection not one inch. Amending the state constitution is necessary to move to the system the State Journal favors. That is a years-long process requiring the approval of state lawmakers in two successive sessions of the Legislature, and then voter approval in a statewide referendum. There have been no votes in either house of the Legislature on a proposed constitutional amendment establishing merit selection for judges in the three years since the State Journal started campaigning for it. That's because not a single legislator in either party has been willing to even introduce such an amendment.

One former member of the Assembly, Mark Gottlieb of Port Washington, did introduce a proposed constitutional amendment calling for appointment of Supreme Court justices. But Gottlieb didn't propose merit selection, he called for members of the state's highest court to be directly appointed by the governor. The proposal went nowhere and Gottlieb is no longer in the Legislature.

There is a reason why neither Republican nor Democratic legislators are calling for a constitutional amendment ending judicial elections. They know voters of every stripe oppose it. Even if lawmakers did approve such an amendment and then return two years later and approve it again, the voters would not ratify it. The politicians know the path to merit selection leads nowhere.

In a very thoughtful New York Times commentary published this week two law professors, one at Hofstra and the other at the University of California in Irvine, state the obvious: judicial elections are here to stay.

Thirty-nine states elect at least some of their judges. For more than a quarter of a century, voters in state after state have rejected switching from electing judges to appointing them. Just last year, despite a campaign led by retired U.S. Supreme Court Justice Sandra Day O’Connor, Nevada voters became the latest to reject such a change.

Look, judicial selection is inherently political. Appointing judges does not take politics out of the process, it only removes the voters. The highest appointed court in the land, the U.S. Supreme Court, also easily qualifies as one of the nation's most politicized.

Instead of spinning our wheels arguing over whether it's better to appoint or elect judges, we should accept that we've been electing judges in Wisconsin for over 150 years and we will be electing them 150 years from now. The real question is whether future elections will look like they did for the better part of a century and a half in Wisconsin or instead resemble the auctions we've had for state Supreme Court since 2007.

The sooner we can get down to the business of answering that question, the better off we'll be.

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