Voting for Judge

"(Former Supreme Court Justice Sandra Day) O'Connor said states need to develop merit selection systems in which judges are appointed after a panel screens their credentials."
Milwaukee Journal Sentinel, May 7, 2010, page 1B

"Should we cancel Summerfest because there is too much loud obnoxious music?"
"Art Kumbalek" in the Shepherd Express

Although the last couple of Wisconsin Supreme Court races have included the "loud obnoxious music" of distortions and character-assassinations, I am not persuaded that we should cancel our 150+ year tradition of electing judges in this state.

Addressing the Wisconsin State Bar annual convention on May 6, former Justice O'Connor asked, "How can people have faith in the (legal) system, when such large amounts of money are used to influence elections?" She has as valid point: millions were poured into Supreme Court races in this state by special-interest groups, and the contests are becoming increasingly nasty. Raising money is not a good test of who will be a good judge. (Under a new law, state money will also be available to candidates for the Wisconsin Supreme Court who agree to limit campaign spending, but O'Connor insisted that appointing judges would be a superior reform. )

In my view, the suspicions of bias that arise from the raising and spending boatloads of cash for judicial campaigns are still outweighed by the benefits of electing our judiciary. Judges are very powerful people: they can jail people for contempt of court, impose (or decline to impose) prison sentences on people convicted of crimes, and even declare state laws unconstitutional. Their decisions can be overturned (1), but only by judges of higher courts, who are even more powerful. It is the essence of democracy that those who exercise power should be answerable to the people periodically in elections.

Here are some important facts to consider:

1. Even with the present system, most judges have been initially appointed to the bench by the Governor, so appointments play a major role right now (although the Governor need not listen to any panel, as proposed by Mrs. O'Connor.)

2. Very few judges are ever defeated for re-election. In the 28 Supreme Court elections held in Wisconsin since 1967, only one appointed Justice (Louis Butler) was defeated. Incumbency is even more important than money in these contests, so appointed judges start every contested race with a big advantage. (2)

3. Only lawyers can be judges (above the municipal level), so all the voters can do is choose one lawyer over another. Since the Bar Association publicly rates judicial candidates, and newspaper endorsements often follow these ratings, the lawyers of the state have substantial influence over which lawyer becomes (or remains) a judge.

If former Justice O'Connor's plan were implemented, the judicial selection panels would certainly be dominated by lawyers. If so, the vast majority of citizens (who are not lawyers) would lose even the modicum of power they have now to determine who should make the decisions that are so important to both individuals and entire communities.

The people do not always choose the best candidate, so some "rotten apples" have become judges. But even so, I trust the people of this state to make better choices than any panel of lawyers.

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(1) Except that if a judge excludes certain evidence in a criminal trial, and the defendant is then acquitted by the jury, the acquittal cannot be appealed because of the rule against "double jeopardy." On the other hand, convicted defendants can appeal decisions to admit evidence.

(2) For example, Christ T Seraphim was appointed a Milwaukee County judge by Governor Gaylord A Nelson in 1959. Despite a record of grandstanding, bigotry and abusive behavior on the bench, he was re-elected five times before he was suspended by the Wisconsin Supreme Court for misconduct. Only then did he lose a bid for re-election. His example shows that a bad judge can be both appointed and elected.

Papers, Please!

"As American Jews,.....we must be alarmed at the notion of Arizona police officers stopping Latinos and asking , 'Papers, please.'....Not long ago in Europe, Jews were forced to carry identification papers and lived in fear of being stopped and questioned. The singling out of Jews in Europe led to a horrific end. What will become of immigrants in this country?"
Editor's Desk Column by Elana Kahn-Oren in Wisconsin Jewish Chronicle, May, 2010, page 4.

Since all decent people, especially Jews, hate the Nazis, one way to turn people against a particular policy is to link it somehow to Nazism. Recall Rush Limbaugh's "feminazis" and the hideous Hitler-style moustache on photos of Barack Obama flaunted by protesters just a year ago.

In the same spirit, Mrs. Kahn-Oren would have us abhor the new Arizona law that requires police to enforce immigration law, since officers would ask to see "papers" just like the Nazis did in occupied Europe. (Actually, even the term "papers" reeks of World War II; Arizona officers would be satisfied with a driver's license, state ID or immigration "green card", none of which are really "papers." The same laminated ID cards that we all use to board a plane, rent a car or cash a check will verify American citizenship, should it be questioned.)

A Jew without the right paper (such as a certificate of Swedish citizenship) in Nazi-occupied Europe would be deported to Auschwitz, whereas an illegal (aka "undocumented") alien caught in the US would be deported back to his home country. Is that a distinction worth mentioning? The quoted column does not.

Instead, Mrs. Kahn-Oren goes on to write, "We Jews have an obligation to stand up for others....register our protest to this new law and work to prevent other such attempts to harm undocumented immigrants." By her own estimate, there about 460,000 illegal immigrants in Arizona, nearly the population of Milwaukee. Since they cannot get jobs with legitimate businesses (per federal law since 2006), most of them subsist in the "underground economy" of day labor for cash, which means they pay no income tax. But they do place a strain on the public services provided by the taxpayers of Arizona (and the nation): education, medical, water, and the criminal justice system. The presence of a large unskilled workforce also tends to depress wages for labor, which hurts the native working class of the state.

At the end of the column, Mrs Kahn-Oren calls for "comprehensive and compassionate reform" of our immigration code, without specifying the details of the reform she wants. In other words, we Jews should be "on the side of the angels" in our compassion for the illegal immigrants, and oppose a law intended to alleviate the burden that they have placed on the citizens of our sister state. I have more compassion for the people of Arizona.