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Bill would end Supreme Court elections in Wisconsin

By   /   October 3, 2011  /   No Comments

By Kirsten Adshead | Wisconsin Reporter

MADISON — The cost of Badger State judicial campaigns is way up, and public opinion of the state Supreme Court is way down.

But don’t expect Wisconsin to ditch judicial elections for an appointed system anytime soon, constitutional expert Rick Esenberg said.

“We’ve always elected judges in Wisconsin,” the Marquette University law professor said. “I think that voters don’t like to give up the vote.”

That may be the case, but a bipartisan group of lawmakers wants to let voters decide if they want to give up their vote for high court justices.

Sens. Dale Schultz, R-Richland Center, and Tim Cullen, D-Janesville, are proposing a constitutional amendment that would allow Wisconsin governors to appoint Supreme Court justices to 10-year terms and appellate court judges to six-year terms, choosing from a list of nominees selected by an independent commission.

Wisconsin revisits the elections-vs.-appointments debate periodically, but continually opts for elections.

The issue has taken on added prominence this year, however, after the David ProsserJoAnne Kloppenburg race earlier this year became one of the most expensive, and contentious, judicial races in the state’s history.

Proponents of judicial elections say it’s the most democratic system. Opponents, though, object to special interest money influencing the process.

In this year’s Supreme Court race, 35 special interest groups joined four candidates in spending $5.4 million, the nonprofit Wisconsin Democracy Campaign, which tracks campaign spending, reported in April.

Most of the money, $4.5 million, came from special interest groups.

“There’s this desire to get politics out of the selection process, but I don’t know that there’s really any way to do that,” Esenberg said. “The only difference is how transparent the politics is, or whether we kind of drive it under the ground and pretend that all we’re really about is merit selection.”

The public’s opinion of the state Supreme Court has tanked amid reports of internal fighting and accusations of a physical confrontation between Prosser and Justice Ann Walsh Bradley.

The Justice at Stake campaign, or JAS, a Washington, D.C.-based nonprofit that advocates for fair and impartial judiciaries, polled 750 of Wisconsin’s registered voters in mid-July. The poll found 33 percent of respondents approved of the Wisconsin Supreme Court, down from 52 percent three years ago, according to JAS. The poll’s margin of error was 3.6 percent.

“Courts are supposed to be the one safe place where people know they are going to get a fair hearing, without worrying about partisan political influence,” JAS Executive Director Bert Brandenburg said in a statement. “But in Wisconsin, there are real questions about whether the public has lost confidence that their Supreme Court can issue fair and impartial decisions.”

Still, 59 percent disliked the idea of a governor appointing justices.

Former U.S. Supreme Court Justice Sandra Day O’Connor weighed in on the Wisconsin issue in May 2010, telling the State Bar Association that Wisconsin should adopt an appointment system. She, too, argued that elections allow wealthy special interests to buy favors by contributing to judicial campaigns.

During the panel discussion, Wisconsin Supreme Court Chief Justice Shirley Abrahamson told O’Connor that elected judges like herself can keep influence at bay.

The country is split on the issue. Twenty-six states elect supreme court justices, while 24 use bipartisan commissions and governors to appoint justices, according to JAS.

Wisconsin’s judicial elections have been ingrained in its political system since the birth of the state.

The last to make a switch was New Mexico, which changed to an appointee system in 1988, according to JAS.

To amend the Wisconsin Constitution, the Schultz-Cullen proposal would have to be passed by two separate, consecutive Legislatures before getting ultimate approval by voter referendum.

Esenberg doesn’t see that happening.

“It’s hard for me to see people deciding that they’re going to give up their right to select public officials who they currently select,” Esenberg said.

Neither Schultz nor Cullen returned calls seeking comment, nor did Gov. Scott Walker’s office.

“It’s hard for me to see people deciding that they’re going to give up their right to select public officials who they currently select,” Esenberg said.