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The race for Wisconsin Supreme Court Justice finally ended on Tuesday when Joanne Kloppenburg conceded defeat after a recount, but the “ugly, money-soaked race” has left some questioning the use of judicial elections. Kloppenburg herself expressed hope that the election would be a “wake-up call” that the system needs improvements, but an editorial in the Wisconsin State Journal goes further and calls for the “extinction” of judicial elections.

The editorial argues that the recent election demonstrates the need to switch to merit selection of judges.

Judicial elections in Wisconsin are nonpartisan, but the race between Kloppenburg and Justice David Prosser became a referendum on collective bargaining – a clearly partisan issue. In addition, special interest groups brought millions of dollars and negative ad campaigns into the race. In explaining the need for merit selection, the editorial points out the differences between judges and other elected officials:

Unlike lawmakers and governors, our top judges aren’t supposed to represent constituencies or cater to the whims of the public. Unlike other elected officials, our top judges are supposed to be impartial and independent. But judicial elections are turning our best judges into the worst of politicians.

We agree. Merit Selection is the best way to take judges out of the business of politics, get money out of the judicial selection process, and ensure fair and impartial courts.

An editorial in the New York Times this week describes the damage judicial elections do to the judiciary. The editorial specifically looks at the “furiously contested” Wisconsin Supreme Court election that attracted national attention, and describes it as showing “how politics and money can debase the law.” As discussed in earlier posts, the election was a close one and there will likely be a recount. However, the editorial is accurate when it announces: “Whoever ultimately gets the job, all of Wisconsin has lost. This nasty, highly politicized race is raising serious questions about the impartiality of the state’s highest court.” The editorial goes on to describe the $3.58 million spent by outside groups, largely on negative television advertisements.

We agree that expensive, nasty, and politicized judicial elections are costly, and that the price is the public’s confidence in a fair and impartial judiciary. The editorial ends with a call which we echo – for judicial selection by merit panels. Merit Selection is the best way to take money and politics out of the process, and the best way to ensure fair and impartial courts.

Early yesterday it appeared that JoAnne Kloppenburg had a narrow lead over Justice David Prosser in the election for the Wisconsin Supreme Court, but the Thursday discovery of thousands of uncounted votes has Prosser soundly in the lead. Waukesha County Clerk Kathy Nickolaus announced yesterday that she failed to save and report 14,315 votes from the city of Brookfield. From those votes, Prosser gained 7,582 votes over Kloppenburg.

There is some uncertainty about what will happen next, but the possibility of a recount remains. Some believe that the numbers are correct, while others are calling for an independent investigation over the recovery of the results. There has also been some criticism of the clerk’s election system. Although in general compliance with state and federal guidelines, an audit recommended that she should improve the security and backup procedures.

Whether or not a recount occurs, the Wisconsin election raises questions about the use of judicial elections. An article in Business Insider examines judicial elections. Almost 1.5 million votes were cast in this election, a lot for a judicial race. But the money and the politics involved in the process have some people asking “Is this how we want justice to work?” Noting that the executive and legislative branches are accountable to voters, the article questions the wisdom of treating judges the same way. “Judicial elections are intended to make judges accountable to the voters. That’s undoubtedly democratic, but I do not think it is wise. Judges should ultimately be accountable to the law, or at least to their best efforts to understand, interpret and apply it.” Merit Selection is the best system to remove politics and money from the process, and to allow a focus on the law.

The Wisconsin election for Supreme Court Justice that made national news took place on Tuesday and was still too close to call the morning following the election. Nearly 20 hours after the polls closed challenger JoAnne Kloppenburg had claimed a narrow victory of 204 votes over Justice David Prosser, but with the margin of merely 1/100^th of a percent this will not end the race. The election has been full of political turmoil due to large amounts of spending from outside special interest groups, prompted in large part by a new controversial law causing problems between state Republicans and Democrats.

The close margin of the race brings new political issues to the judicial selection process – the likelihood of a recount and the potential for litigation. Once the vote count is official, either candidate may request a recount. Prosser himself acknowledged that: “There is little doubt there is going to be a recount.” If the margin is less than 0.5%, the state foots the bill. In a margin between 0.5% and 2%, the candidate who requests the recount must contribute $5 per ward. Recounts are expensive for the government, often costing more than $1 million, much of which will be paid for by the counties.

After a recount, the possibility remains that the issue could go to the courts. Not only would litigation bring more money into an already expensive campaign, it would continue to politicize the process. Under state law, Chief Justice Shirley Abrahamsom would appoint a judge to hear the case. Abrahamsom and Prosser have clashed on the court and publicly. If the case were to make it to the Wisconsin Supreme Court, it would be heard by a court with a 3-3 liberal-conservative split because Prosser would need to recuse himself.

The twists and turns of this election demonstrate the dangers of a judicial selection process that depends on money and politics. Now, even more money could be spent on a recount and ensuing litigation. Further problems may be caused by the direct involvement of courts making decisions about the next person to sit on the state’s highest court.

Clearly, money and politics have become dangerously intertwined in the judicial selection process. It is time to take the focus off of money and politics, and to put the focus on qualifications and ensuring fair and impartial courts. Merit Selection is designed to do just that.

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.

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.