Wisconsin’s Supreme Court race attracted attention over the weekend because of an ad attacking one of the candidates. The commercial, created by a third party, implies that the candidate (acting as a district attorney thirty years ago) ignored allegations that a priest was sexually abusing children.
The candidate portrayed in the ad, Supreme Court Justice David Prosser, refuted the veracity of the commercial, calling it “disgraceful” and “untruthful.” He has been joined by one of the victims of the priest referred to in the ad, who called it “inaccurate, offensive, and out of context.” During a candidate forum, Prosser went further, describing it as “the worst ad that has ever been run in a judicial campaign.” His opponent, JoAnne Kloppenburg, declined to comment on the commercial during the forum except to say at one point “Like it or not, third parties have a right to run ads of their choosing.” The creator of the commercial, the Greater Wisconsin Committee, issued a statement standing by the ad.
The same victim who denounced the commercial as inaccurate touched on its effect on judicial elections when he said: “I’m so sick and tired of dirty politics.” The fact that a judicial election is subject to “dirty politics” is one of the primary problems with judicial elections. This “non-partisan” Wisconsin election has become a political battle ground for labor issues. The negative commercial is simply another example of politics filtering into the process.
This ad was created by a third party and not a candidate, but that does not decrease the negative effect on the judicial selection process. It is judicial candidates who are dragged into the political arena, and it is judicial candidates who must react to the ad. At the end of the day, judicial candidates are in the middle of these contentious and dirty campaigns, and their presence there tarnishes the judiciary as a whole.
Judicial campaigns do not exist in a vacuum. The politics that occur during elections gives the public reason to lose confidence in the courts, and that effect is felt after the election is decided. Judges should not be involved in activities typical of other politicians because of the different function of the judiciary. Politics should be removed from the judicial selection process to the greatest extent possible, and Merit Selection is the best way to accomplish this.
Tags: Greater Wisconsin Committee
, JoAnne Kloppenburg
, judicial elections
, Justice David Prosser
, Merit Selection
, Wisconsin Supreme Court
Today, the Supreme Court heard argument in two cases that could affect the future of public financing plans in states that use them to combat the influence of campaign fundraising on judicial elections. According to SCOTUSBlog, the prospects for Arizona’s Citizens Clean Elections Act don’t look particularly good:
Justice Anthony M. Kennedy, who definitely seems to hold the deciding vote on the newest test of the Supreme Court’s skepticism about campaign finance laws, made repeated comments on Monday suggesting that he is very wary of Arizona’s attempt to offset the impact of wealthy candidates paying their own way. Among a variety that could be noted, no remark was more telling than what seemed almost to be a rhetorical question: “Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?”
A ruling against Arizona would invalidate the “trigger provision” portion of the act, which allows for an increase in funding for publicly financed candidates who are outspent by privately financed opponents. The argument is that candidates raising their own money are pressured to limit their spending, in order to avoid triggering an injection of public money into an opponent’s coffers. Justice Kennedy seems sympathetic to the claim that this pressure is so strong that it actually infringes on the First Amendment Free Speech rights of candidates raising private funds.
There has been plenty of speculation about how the case will fair before the Supreme Court. You can sample a selection below.
Justice at Stake Campaign: Supreme Court Case Threatens Public Finance Laws
NY Times: Arizona’s Boon to Free Speech
L.A. Times: Arizona election law heads to Supreme Court
Christian Science Monitor: Supreme Court to decide Arizona’s unique campaign financing law
NPR (Morning Edition): High Court Takes Another Stab At Campaign Finance
The Huffington Post: Will the Supreme Court Prevent Citizens United From Being Fixed?
Center for Responsive Politics: Arizona Public Financing Law Faces Major Supreme Court Test
Tags: Justice Kennedy
, McComish v. Bennett
, public financing
On Monday, 3/28, the Supreme Court is scheduled to hear oral arguments in McComish v. Bennett, a case that challenges a portion of Arizona’s Citizens Clean Elections Act. The ruling could have serious consequences for states that use public financing to allow elected judges to run for the bench without having to raise campaign funds.
The challenged part of the law allows a publicly financed candidate, facing an opponent spending private funds, to receive an extra infusion of public money if their opponent’s spending goes over a certain amount. This “trigger provision” ensures that publicly financed candidates won’t be at a disadvantage, limited to a certain level of spending, while their privately financed opponents are free to spend as much cash as they can raise.
At issue is whether or not the provisions represent a limitation on the rights of candidates who choose not to accept public financing. According to our partners at the Justice at Stake Campaign:
[a] federal judge declared the Arizona provision unconstitutional, saying it violated the First Amendment because it caused candidates without public funding to limit their campaigning, fundraising and spending of campaign money. The Ninth U.S. Circuit Court of Appeals disagreed, saying the provision imposed “only a minimal burden on FirstAmendment rights,” that there was no evidence of it chilling free speech rights, and that it was needed to fight a perception of corruption.
Four states – North Carolina, New Mexico, Wisconsin and West Virginia – have turned to public financing plans, to help alleviate the need for campaign fundraising by appellate judge candidates. A ruling against the Citizens Clean Elections Act would likely invalidate similar trigger provisions contained in all four of those plans. Candidates who opt into public financing in future judicial elections will be forced to limit their spending, while candidates who choose to raise their own funds will be free to spend as much as they can amass. How many aspiring appellate judges will choose public financing, knowing that they won’t be able to respond if their opponents outspend them?
While we respect any attempt to mitigate the influence of campaign spending on the outcome of judicial elections, we think that a better solution is to completely eliminate campaign financing as part of the process. Let appellate judges reach the bench based on their experience, skills and qualifications, not on the back of a huge campaign war chest. That’s why we support Merit Selection for appellate judges in Pennsylvania.
Tags: appellate judges
, campaign finance
, New Mexico
, North Carolina
, public financing
, West Virginia
Pennsylvania State Senator Jane Earll (R-Erie) has introduced two bills that would move Pennsylvania toward Merit Selection of appellate judges. Senate Bill 843 would amend the state Constitution to allow Merit Selection of appellate judges. Senate Bill 842 would modify state law to create the necessary implementing procedures. Both measures were referred to the Senate Judiciary Committee.
Making the transition to Merit Selection requires amending the state constitution. An amendment bill would need to pass in two consecutive sessions of the General Assembly, and then receive a majority vote in a public referendum.
The Philadelphia Inquirer and the Daily News report that ballot positions have been selected for upcoming Philadelphia elections. The races affected by the drawing of positions include city council, city commission, register of wills, sheriff, Traffic Court judge, Municipal Court judge, and Common Pleas Court judge. Ballot positions were chosen by picking numbered bingo balls out of a coffee can, and “the drawing had the feel of a circus joined to a lottery.” Although there is clearly more involved in running a campaign than ballot position, it is telling that one candidate referred to the day as “one of the most important days in the election.” Another candidate, after receiving first position on the ballot, “literally danced out of the courtroom, saying in a sing-song voice ‘Hallelujah, thank you Jesus. Do the right thing and vote for Bloom in the spring.’”
In judicial elections ballot positioning is even more important because the candidates are often less well known and voters have less information to base their choice on. In addition, judicial races are lower on the ballot.
Citizens’ Voice announces that the Department of State in Harrisburg held a lottery to determine ballot positions for candidates running for Luzerne County judge. Political science professor Thomas Baldino said that ballot position is important, with candidates on the top preferred to those on the bottom. He went on to explain that in races with numerous candidates, positioning becomes more important due to “voter fatigue.” Although Pennsylvania’s proposed merit selection process only affects the appellate courts, we believe that increased public education and awareness are crucial in these judicial elections.
The position of judge is too important to be decided in part by the drawing of a numbered bingo ball.
Tags: ballot position
, Citizens' Voice
, Daily News
, judicial elections
, Philadelphia Inquirer
Despite their ostensibly nonpartisan structure, recent elections for the Wisconsin Supreme Court have proven as bitter and heated as any political contest in memory. When then-Justice Louis Butler ran for re-election in 2008, he was defeated by challenger Michael Gableman, who led a multi-million dollar smear campaign that distorted Butler’s record.
This year’s contest, which sees self-described conservative Justice David Prosser up for re-election, is expected to be just as contentious. Wisconsin’s labor unions are making plans to oust Justice Prosser, as part of a planned push back against the recent passage of a bill stripping public unions of their collective bargaining rights.
Prosser’s opponent, former prosecutor JoAnne Kloppenburg, has received praise for her politically independent stance. Unfortunately, the intentions of the candidate often mean very little when races can be influenced by political party and interest group spending that’s completely out of their control. In the 2008 race, outside groups out-spent the candidates by almost 11 to 1, a margin which even alarmed the candidates themselves.
No matter how apolitical Kloppenburg remains, the unfolding narrative of the election is already becoming clear. The unions and the political left are promoting Kloppenburg as a weapon against the policies of Governor Scott Walker and the Republican-controlled state legislature. The pretense of nonpartisan elections has never been less accurate. Whatever your political views, the judiciary is diminished whenever a judicial contest is decided not on the qualifications and ability of the judges in question, but by political expedience and campaign spending.
Tags: judicial election
If a recent hearing is any indication, the Nevada Supreme Court is about to allow the state’s judges and judicial candidates to “take the gloves off” when campaigning for a seat on the bench. According to the Las Vegas Review-Journal, “[j]ustices seemed to favor lifting the restrictions, which prohibit judicial candidates both in what they can say in a campaign and how and when they raise money.” The comments came at a public hearing held Thursday, that could determine the future of the court’s Standing Commission on Judicial Ethics and Election Practices.
Recent rulings by the U.S. Supreme Court have raised the issue of whether Nevada’s restrictions on judicial campaigning and fundraising infringe on First Amendment free-speech protections. The Nevada Supreme Court is deciding whether or not to overhaul the commission, which uses those rules to resole campaign disputes, and advise sitting judges who inquire about ethical issues.
The voters in Nevada recently rejected a proposal to eliminate judicial elections in favor of a Merit Selection system. Now, they’ll likely be faced with increasingly partisan judicial campaign rhetoric, and judges whose political savvy and fundraising skills are their most important qualifications for the bench. We hope that we can provide the voters of Pennsylvania with the opportunity to make a different choice.
Tags: campaign finance
, judicial selection
An article in the Waukesha Patch explains that the race for a seat on the Wisconsin Supreme Court is shaping up as a political contest. Redistricting has emerged as an issue in the race in the Wisconsin race. For Pennsylvanians, this echoes the 2009 Pennsylvania Supreme Court race. Wisconsin is preparing to redraw legislative districts based on new census data. With Republicans in control of both of the state Legislature’s houses, Democrats are concerned about districts becoming safer for Republicans. In addition, the Supreme Court often splits 4-3 in a manner viewed by many as conservative-liberal.
The race pits incumbent Justice David Prosser Jr. against challenger JoAnne Kloppenburg. Prosser is a former Republican who Kloppenburg believes: “has sent a clear message that he will favor the agenda of Gov. (Scott) Walker and the Republican Legislature.” Kloppenburg went on to describe herself as someone who would “apply the law to the facts of the cases before me and decide them without prejudice.” Prosser, however, implied that Kloppenburg’s supporters are not free of politicking on the reapportionment issue.
Wisconsin utilizes elections that are officially non-partisan, but the prohibition on candidates from running as representatives of political process clearly has not kept politics out of judicial campaigns. When judicial candidates and their supporters are wrapped up in political issues and agendas, it gives the public reason to lose confidence in the fairness and impartiality of the judicial system. Incumbent and potential judges should not be involved in politicking in order to maintain or gain a seat on the court. Rather than removing party names from judicial elections, we believe that politics should be removed from the judicial selection process to the greatest extent possible. Merit selection is the best way to do this, by taking judges out of the business of judicial campaigns.
Tags: David Prosser Jr.
, Governor Scott Walker
, JoAnne Kloppenburg
, Merit Selection
, Waukesha Patch
, Wisconsin Supreme Court
A recent editorial in the Fort Worth Star-Telegram points out how the winds of politics have affected cases pending before the state’s elected judges. Political momentum has shifted back and forth between the two major parties in recent election years. As a result, “many of the 1.7 million cases pending in Texas courts were disrupted: New judges had to restudy files, hearings and rulings were delayed, costing individuals in time and legal fees and taxpayers in dollars spent on the courts.”
In any judicial selection system, there is always the possibility of a judge being forced off the bench mid-case. But only when judges are chosen by partisan elections is there a chance that the removal of a judge will result from “voters arbitrarily choosing judges by their Rs and Ds.”
We agree with Texas Supreme Court Chief Justice Wallace Jefferson, who, in his recent State of the Judiciary address, “again called for a constitutional amendment to allow merit selection of judges, which would free judicial selection of blind partisan voting, the imperative of judges raising campaign funds and the mistrust caused by judges being seen as politicians.” That’s why we’re working to reform the selection of appellate judges in Pennsylvania.
The Philadelphia Inquirer reports that with two Bucks County women endorsed as candidates for the open Commonwealth Court seat, voters will have to consider more than geography and gender when casting their votes. Republicans have endorsed Bucks County lawyer Anne Covey, and Democrats have endorsed Bucks County lawyer Kathryn Boockvar.
Unless a non-endorsed candidate stages an upset in the primary, the election will result in a 5-4 majority on the Commonwealth Court. This represents a trend of women being increasingly present on the appellate courts. Lynn Marks, PMC’s executive director, explains that: “Women used to be so underrepresented in the legal community that most of the judicial candidates tended to be male. Now with more women coming up through the ranks we are seeing more women on the appellate courts.” The article explains that with geography and gender taken out of the equation, voters might need to do more research on candidates. However, it also acknowledges the possibility that voters will simply rely more heavily on party recommendations.
Increasing the numbers of female judges is a good step for the judiciary, but the improvement is not confined to courts that use judicial elections. In fact, merit selection also increases the numbers of women on the courts. Merit selection achieves these increases through careful consideration of candidates and their histories and credentials. This article demonstrates the danger presented by judicial elections of identifying judicial candidates by easily defined parameters – such as gender, location of residence, and political affiliation – rather than their individual qualifications for the position. The Inquirer article even acknowledges that voters might prefer to cast their ballot based on gender or geography, but in this situation they are prevented from doing so based on the similarity of the candidates. The article seems to have trouble distinguishing the two women, except for their different party affiliations.
Women belong on the bench when they are experienced and qualified members of the legal community. Merit selection provides the best means of evaluating judicial candidates based on the whole picture of their qualifications. Under such a system, more women are chosen as judges because of their credentials.
Tags: Anne Covey
, judicial elections
, Kathryn Boockvar
, Merit Selection
, Philadelphia Inquirer