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Steve Jagler’s editorial in OnMilwaukee.com raises some important questions swirling around now that recusal is a hot topic.  These questions highlight the ongoing problems with judicial elections and the need to find a solution that gets judges out of the fundraising business altogether.

Jagler notes that the Wisconsin Supreme Court has been presented with two proposals on amending recusal rules.  The first, proposed by League of Women Voters of Wisconsin Education Fund and supported by the Wisconsin Democracy Campaign and Common Cause in Wisconsin, urges the Court to enact a rule requiring judges to recuse in any case where the litigants contributed $1,000 or more to the judge’s campaign or tried to influence the election through mass communications.

Jagler notes that if the Court adopts the $1,000 contribution trigger for recusals,:

[T]here could be a whole lot of recusing going on. According to a study by the Wisconsin Democracy Campaign requested by BizTimes Milwaukee, Wisconsin justices have received the following numbers of individual campaign donations of $1,000 or more: Shirley Abrahamson, 341; Annette Ziegler, 95; Mike Gableman, 71; Pat Roggesack, 42; Patrick Crooks, 38; and Ann Walsh Bradley, 37. Only Justice David Prosser Jr. has not received any individual donations of $1,000 or more.

However, the campaigns of all of the Wisconsin justices have received donations of $1,000 or more from political action committees (PACs).

More troubling is Jagler’s prediction of what will ensue on the campaign contribution front if the $1,000 trigger is adopted: “We’ll see a spike of checks for $999 donated to judicial candidates.”  This gets at the very heart of the issue: the problem is not the amount of the contribution, but the fact of the contribution.

The second proposal to the Wisconsin Supreme Court, made by the Wisconsin Realtors Association, urges the Court to amend the judicial code to explain that recusal shall not be required solely because a party endorsed the judge or made a lawful contribution to the judge’s campaign.  This, in essence, does nothing to address the problem of money in judicial elections. In fact, it attempts to ignore the fact that money is a problem.

Money and judicial selection shouldn’t mix. There should never be an instance where a party or lawyer has to be concerned that the opposing side contributed monetarily to the presiding judge’s campaign for the bench.  As long as we continue to elect judges, this problem will not go away. The answer is to get judges out of the fundraising business. Merit Selection accomplishes this.

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