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.

Party Time for Judges?

"Wisconsin Atty. Gen. J B Van Hollen ...(will) appeal a federal court ruling that state judges could join political parties, solicit campaign contributions, and endorse partisan candidates."
Milwaukee Journal Sentinel, March 20, 2009

US Western District Judge Barbara Crabb ruled last month in Seifert v Alexander (1) that the limitations on political activity noted above were unconstitutional infringements on judges' right to freedom of speech under the First Amendment. Circuit Judge John Seifert of Milwaukee County brought the action against James Alexander, the Executive Director of the Wisconsin Judicial Commission. The rules in question were imposed by the Wisconsin State Supreme Court.

Judges, like all other Americans, have opinions on the big issues of the day such as abortion rights, gun control, same-sex marriage and so on. Off the bench, they have the right to express their opinions through speeches, letters and other means. The Judicial Code of Conduct even permits judges to participate in organizations which support a legislative agenda, such as the Milwaukee Jewish Council for Community Relations. (2)

The rule prohibiting judges from joining a political party is narrowly tailored to achieve a worthy public purpose: to distance judges from partisan activities that might influence (or reasonably appear to influence) their decisions. When partisan officials are involved in a lawsuit or criminal case, the state has a compelling interest in preventing partisan considerations from creating the appearance of bias. For example, if a Republican legislator is accused of misconduct in office, should the case be tried by Democratic or Republican judge?

The rule against solicitation of political contributions by judges is even more essential. Suppose you practice law in Washburn County, and the only judge in the County calls you for a donation to his next campaign. How comfortable would you be in turning him down? The Court ruled that since judges have access to lists of donors to their campaign committee, the rule prohibiting personal solicitation does nothing to prevent pressuring of lawyers (or litigants) into coughing up contributions; I would contend that personal solicitation by a judge is far more intimidating than a letter or call from the campaign committee, and should be banned. Some judges even recuse (disqualify) themselves from hearing cases involving parties who have made unsolicited contributions to their past campaigns. (3)

In her ruling Judge Crabb cited Republican Party of Minnesota vs White (4), in which the US Supreme Court invalidated a judicial ethics rule in that state that barred candidates for judicial offices from even "announcing their views on political and legal issues." But if the Minnesota rule went too far in infringing on the right to free speech, the Wisconsin rules do not. The courts have ruled that people in certain positions, such as federal civil service employees, in effect give up some political rights to accept such positions. Moreover, American soldiers can be court-martialed for publicly insulting the President of the United States, a right most Americans consider priceless. All federal and state laws limiting campaign contributions also limit political speech, but I do not believe that they are all unconstitutional (though some people do!)

Since I am neither a lawyer nor an expert on constitutional rights, I cannot determine that Seifert was wrongly decided, but I contend that the decision removes some valuable safeguards for the objectivity of our judiciary. So, I am glad that the Attorney General of Wisconsin is appealing the case to the Seventh Circuit, and hope that the judges there find just cause to reverse Judge Crabb.
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(1) 08-CV-126

(2) Circuit Judge Charles Kahn and retired US District Judge Myron Gordon have served on the MJCCR.

(3) Then Circuit Judge Rudolph Randa recused in the 1985 case of Wauwatosa v Glazer because I had contributed $5 to his 1975 campaign for Milwaukee Municipal Judge. He had a good memory, as well as a strict standard of judicial ethics!

(4) 536 US 765 (2002).