By Kevin Binversie | Wisconsin Reporter
Tired of Wisconsin’s endless game of constitutional chaos?
Blame the “nonpartisan” judicial system that feeds it.
If Wisconsin had a system to determine our state Supreme Court justices similar to the one used by the U.S. Supreme Court, where members are nominated and then confirmed by the U.S. Senate, we’d all be better off.
Maybe we’d lower reports of brawling on the bench.
Instead, in the Badger State, we elect our justices in the spring in so-called “nonpartisan elections,” which over the past decade have come with all the trappings of partisan elections. The victor is then given a 10-year term, and the justice with the longest, uninterrupted years of service is named the chief justice.
If a justice retires, dies in office or leaves the bench during the middle of a term, the governor appoints a replacement. Said replacement is then immediately placed on the next spring ballot to receive the voters’ verdict.
If a justice is scheduled to be up for re-election in the next spring election, the system forces the newly appointed justice to wait until the next available free space on the judicial bingo card.
The last time this happened was 2004, when former state Justice Diane Sykes was appointed to the 7th Circuit U.S. Court of Appeals in Chicago. To fill the vacancy, former Gov. Jim Doyle, a Democrat, named Louis Butler — the very attorney Sykes defeated in 2000 when she was up for re-election after her initial appointment in 1999 by former Gov. Tommy Thompson — to the bench.
Since state Supreme Court elections between 2005 and 2007 were scheduled, Butler didn’t have to face voters until 2008. By then, his decisions favorable to trial attorneys led to him being defeated by Justice Michael Gableman in an election which still aggravates the most hardened liberal partisans.
The judicial selection system, the past decade has taught us, isn’t just flawed, it’s broken. Once low-key events, races for the state Supreme Court have morphed into million-dollar campaigns, as the business community and unions go all-out to help elect — or re-elect — judges whom they hope can be a force for their long-term interests.
Adding to the high stakes of it all is a 4-3 slim majority teetering in the balance over such high-profile policy initiatives, such as gay marriage, voter ID, or the potential future of school choice in Milwaukee and elsewhere in Wisconsin. It hit its zenith in 2011, when the re-election of Justice David Prosser was turned into proxy fight over Gov. Scott Walker’s collective-bargaining reforms known as Act 10, with unions all but publicly demanding that candidate Joanne Kloppenburg vote their way.
Prosser won, but a bitter recount ensued, and Prosser won that. Shortly after, there was the divided state Supreme Court contest over the legislative process of enacting Act 10, some alleged slapping, choking and general ill will between the members of the state court of last resort.
A repeat nonpartisan performance — hopefully sans court rumble — is expected this coming spring, when conservative Justice Patience Roggensack is up for re-election, especially with Act 10 again making its way through the state court system and its final fate all but assured by a ruling in 2013 or after. Already, potential opponents sound as though they are more concerned with going up against Walker than actually upholding the law and the state constitution in an impartial fashion.
Perhaps after all this, maybe what should truly change is the method Wisconsin uses to select its justices. A number of states hold partisan elections. At least that way there appears to be more truth in advertising. At least voters know where the candidates stand.
Other states use a retention vote method in which a governor-appointed board selects potential nominees for the governor to pick from based on merit. In this method, the legal profession selects its peers, while voters then decide if they want to keep them around after a term in office.
Of the choices, I’d prefer giving nominating power to the governor, and then giving final approval to the state Senate. At least that way you’d know where the nominee is coming from — typically.
But this is Wisconsin, where nothing ever comes easy politically. Any sort of attempt to change judicial selection more than likely would be bogged down in the political process, and the divided nature of the state might make change improbable, if not impossible.
The irony there, of course, is that the judicial branch is supposed to be free from the political process all together. But politics has been all-too present in the past decade-plus of state Supreme Court fights.
Veteran political blogger Kevin Binversie is a Wisconsin native. He served in the George W. Bush administration from 2007-2009, worked at the Heritage Foundation and has worked on numerous state Republican campaigns, most recently as research director for Ron Johnson for Senate. Contact him at [email protected].