The polls are open in Wisconsin, but the predictions for voter turnout are grim. According to an article in the Milwaukee Journal Sentinel, a vote that will determine who will be on the ballot for a spot on the state Supreme Court in April could be decided by 1/10th of the eligible voters. Four people are running for that seat, including incumbent Justice David Prosser. Because of the way Wisconsin’s judicial primaries work, Prosser could fail to make the general election ballot if today’s vote doesn’t go well for him.

Supporters of judicial elections like to talk about the will of the people. Yet, despite skyrocketing campaign spending, judicial elections traditionally fail to muster much interest among voters. Can an election that could remove an incumbent justice at the whim of 10% of the voters really be said to accurately reflect the will of the whole? Or is it more accurate to say that it measures which candidate raised campaign contributions and made political connections most effectively?

Friday’s Wisconsin State Journal editorial asks the question,

Shouldn’t a Supreme Court candidate’s legal skill and fairness be more important than ability to raise campaign money and win partisan support?

The answer seems clear. Yet, in the wake of the “Gableman affair,” in which the state Supreme Court deadlocked along party lines over a complaint accusing Justice Michael Gableman of lying about an opponent in a campaign ad, Wisconsinites are realizing that “legal skill and fairness” may be taking a back seat due to the state’s practice of electing its judges.

The increasingly partisan nature of Supreme Court elections is rapidly erasing the line that once insulated the judicial branch of government from the partisan politics of the legislative and executive branches.

The “Gableman affair” has been characterized as a tipping point.

From the campaign to the ethics case, politics shaped a process that should have been shaped by the law.

But there may be a silver lining. Many are now second-guessing the soundness of judicial elections. The Wisconsin State Journal, along with the Beloit Daily News and Milwaukee Journal Sentinel, has advocated for replacing this politically driven process with a system of merit selection. Merit Selection, in which candidates are evaluated based on their qualifications by a nonpartisan commission, would provide for greater transparency in the judicial selection process and ensure that the most fair and candidates reach the bench.

The editorial closes with an answer to its own question.

Wisconsin should restore public trust in the Supreme Court by shifting to merit selection of justices.

Wisconsin’s largest newspaper, the Milwaukee Journal-Sentinel, is calling for the state legislature to explore selecting justices instead of electing them in light of a recent Supreme Court deadlock over whether to sanction current Justice Michael Gableman for lying in his campaign:

And, still, the 3-3 deadlock on whether to sanction Justice Michael Gableman for a campaign lie does send a message: Supreme Court justices are mere politicians, allowed to lie without consequence to secure plum jobs. And this prompts the question: Why should voters believe that the mere act of donning black robes will suddenly transform any justice who lies to get elected into the picture of legal impartiality and propriety?

Gableman’s campaign accused his opponent, a public defender, of finding a “loophole” in a law that allowed a child rapist to be released and subsequently rape again. The problem, the Journal-Sentinel says, is that the public defender didn’t. “It’s a lie.”

The newspaper, which has pushed for judicial reform in other contexts in the past, (for an example, click here) continues:

Appointing Supreme Court justices rather than electing them can more effectively distance these candidates from the corrupting influences of politicking, raising money and appearing to all the world as just another layer of partisan politicians, except with black robes.

Read the full editorial here.

Wisconsin can learn the perils of partisanship in judicial elections from PA. Like Pennsylvania, Wisconsin still elects its appellate judges. Unlike the Keystone State, however, judicial candidates in Wisconsin do not run in partisan elections, that is, there is no “(R)” or “(D)” next to candidates’ names on ballots. This is an important distinction. PA is one of only six states that elects all of its judges in partisan elections. As a result, judicial elections in the Commonwealth have become increasingly negative, and increasingly expensive.

According to an article in the Wisconsin State Journal (hat tip to Gavel Grab), despite a federal court’s ruling last year that Wisconsin judicial candidates may identify with political parties, the three running in the upcoming election don’t plan to do so. But the state is trending toward increased partisanship among judicial hopefuls, according to the article, “as groups and individuals who regularly back Democrats or Republicans line up behind their favored candidates.”

In the 2009 race for a vacant seat on the Pennsylvania Supreme Court, both candidates, (now) Justice Joan Orie Melvin (R), and (still) Superior Court Judge Jack Panella (D) flung negative ads about the other back and forth. Each side spent well over $1 million dollars on these television ads. It was clear to both sides that much was at stake. Whichever political party’s candidate won would have a 4-3 majority on the court for the upcoming reapportionment of state congressional districts following the 2010 U.S. Census. Adding to the impression of partisanship, the Republican Party paid for most of J. Orie Melvin’s television advertisements.

Partisan or not, judicial elections are a bad idea, for the very reasons the Wisconsin candidates give for not openly affiliating with a political party:

“I do think the judicial branch is different from other branches . . . . Judges do have to scrupulously avoid injecting their personal agendas and follow nonpartisanship in their work.”

and,

“A lot of people try to paint a label on our judges . . . . Most of us, we work really hard to stay independent.”

Try as they might, so long as judges have to campaign, build constituencies, and raise money from potential future litigants, staying independent will be an uphill battle, and judges will be seen by the public as no different than other political figures.

The Wisconsin Supreme Court has proposed an order ruling that judges can’t be forced to recuse themselves from hearing a case solely on account of having received a campaign contribution from one of the litigants. The order offers a valid argument supporting this rule:

Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs the judge’s integrity. It would have the effect of discouraging ‘the broadest possible participation in financing campaigns by all citizens of the state’ through voluntary contributions . . . because it would deprive citizens who lawfully contribute to judicial campaigns, whether individually or through an organization, of access to the judges they help elect . . . .

Can’t deny that – it’s certainly a problem.

The problem is, not disqualifying a judge who receives money from a litigant creates an even worse impression: that justice can be bought. In no other country can a litigant give money to a judge without committing bribery (the US is the only country with jurisdictions that elect appellate judges). Of course we are not equating contributing to a judicial campaign with an act of bribery, but it sure may feel that way to a litigant who did not contribute a hefty sum to the judge when her opponent did.

There is a profoundly elegant solution to this otherwise intractable mind-twister. Stop electing judges. There, that was easy.

Incidentally, the article points out that the order comes at a time when the court is being slammed with requests that Justice Michael Gabelman recuse himself from all criminal cases because of statements he made during his campaign that basically equated defending accused criminals with supporting crime. The truthiness of those claims were almost grounds for having Gabelman removed from the court altogether. Race-to-the-bottom campaign statements are just another reason why judges don’t belong in elections.

HT: How Appealing

The Appeals Court panel considering the charges of judicial misconduct filed against Wisconsin Supreme Court Justice Michael Gableman for a misleading election ad has recommended that the charges against him be dismissed.  The question will now go to Justice Gableman’s colleagues on the state Supreme Court for final resolution.  Gavel Grab has a good summary of the case and events leading up to it, and you can read the panel’s decision here.  What worries us is the possible further erosion of the differences between judicial elections and other elections and what it might mean for Pennsylvania.

The case focused on the Wisconsin Supreme Court Rule governing judicial campaign conduct. The pertinent part reads:

A candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identify, qualifications, present position, or other fact concerning the candidate or an opponent.  A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

The panel found that the ad in question  — which focused on Justice Gableman’s opponent and a criminal case he handled as a public defender — did in fact violate the second part of the Rule.  None of the statements in the ad were false, but taken together they were misleading.  However, the panel also concluded that only the first part of the Rule is mandatory (the “shall not” clause), while the second part (the “should not” clause) is aspirational.  Violations of the second clause cannot be the basis for the imposition of discipline.

One judge wrote in concurrence to note that he believed the conduct violated the entire Rule but that the Rule itself was in violation of the First Amendment.  He found the rule to be “an unconstitutional arrogation to a government tribunal of the electorate’s responsibility and sole power to assess campaign speech.”

What’s troubling is the continuing erosion of the special rules regarding judicial elections that recognize that judges are different from other public officials. The more judicial elections become just like other elections — with major fundraising, campaign speeches, heated debates on hot-button issues, and misleading, sensational ads — the more difficult it is for the public and the judges to recognize the unique role judges play.  Once that recognition fades, it will be very hard to recapture when a judge actually takes the bench.  We see that now with the widespread public perception that “justice is for sale” to the biggest campaign contributor.  If judicial candidates may permissibly mislead voters in their campaigns, we will witness an ever decreasing confidence in the courts.

There has been a movement across the nation to challenge and strike down rules and regulations that set up special conditions for judicial elections.  Pennsylvania’s Code of Judicial Conduct (which regulates judicial candidates as well) provides in Canon 7B1(c) that “Candidates, including an incumbent judge, for a judicial office. . . should not . . . misrepresent their identity, qualifications, present position, or other fact.”  Will Pennsylvania be the next state to find that “should not” is just an aspiration and judicial candidates are free to mislead the voters in their quest to reach the bench? Let’s hope not.

From our friends at Gavel Grab:

Former Wisconsin Justice Louis Butler Jr. . . . . nominated by President Obama to the federal bench in Wisconsin, was asked by a GOP senator at a confirmation hearing in Washington about his defeat in two elections for the state’s high court.”

We can only imagine the very slight smile that must have formed on the corner of Butler’s lips as he made this reply:

‘After 16 years on the bench, I may be a better judge than politician,’ replied Butler, according to an article in the Milwaukee Journal Sentinel.”

Butler was defeated last year in an ugly contest with then-Judge Michael Gableman, who now faces an ethics complaint accusing him of lying in a campaign ad aired against Butler.”

Some judges would no doubt make excellent and effective politicians, and some politicians would likely make fine judges. But we think using mere “electability” as the decisive factor in how we choose our judges leaves too much to chance, and gives too much weight to factors other than a candidate’s qualifications.  For choosing our judges, being a good politician should not be more important than being fair, impartial, and wise. Judges should be chosen on merit.

Last week, we wrote about a case currently before a state court panel in Wisconsin involving Michael Gableman, a then-candidate for the state’s Supreme Court who ran an ad against his incumbent opponent. The ad was quite misleading (at best).

According to the National Law Journal, that case may be ultimately headed for the U.S. Supreme Court. In 2007, Washington State’s Supreme Court struck down a state law that prohibited false political ads about opponents as violating the First Amendment protection free speech.  If the Wisconsin Supremes now rule against Gableman’s advertisement, a conflict between the states on an interpretation of the federal constitution will give rise to a basis for Supreme Court review.

Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar’s judicial integrity campaign committee also was “highly critical” of the ad.

“I think the law is eventually going to say that, when you have a judicial election, it’s just the same as any partisan election,” Basting said.

Whichever way Wisconsin rules, the very fact that judicial candidates are mixed up in these types of questions – how low can you go when running for office and stay within your First Amendment rights – highlights the inherent flaw with judicial elections.  Bastings continued in the NLJ article:

“That’s why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges.”

What will it take to convince Pennsylvanians to take a similar hard look?

Yet another reason why judges and elections should not mix, brought to our attention by our friends over at GavelGrab: In 2008, Michael Gabelman, then a Wisconsin Circuit Court judge, ran a television ad against his opponent, a then-sitting justice on the Wisconsin Supreme Court, Louis Butler, Jr. The ad was, at best, deceptive.  A three-judge panel that heard arguments in the case on Wednesday is trying to decide whether the statements in the ad, put together, constituted an outright lie.  The facts of the case, in short, via the Milwaukee Wisconsin Journal Sentinel:

A month before the election, Gableman ran an ad about a case Butler worked on as a public defender involving child sex offender Reuben Lee Mitchell.

“Butler found a loophole. Mitchell went on to molest another child,” the ad said. It then questioned whether the public would be safe with Butler on the court.

Unmentioned in the ad was that Butler won the appeal, but the Supreme Court ruled that errors in the case were not sufficient to overturn the conviction. Mitchell didn’t commit the subsequent crime until he was released on parole.

The Wisconsin Code of Judicial Conduct, like Pennsylvania’s, prohibits false or misleading statements by judicial candidates.

According to Gabelman’s attorney James Bopp, Jr., however, judicial candidates have a right to mislead voters in advertisements, even if it is ill-advised, as long as they are not knowingly misrepresenting information about their opponents. The Journal Sentinel article continues:

“I don’t think misleading is something good, (but) it can’t be sanctioned,” he said.

“The discussion, the debate, the issues that are raised, that’s for the voters to settle – not the courts. . .”

Is this why we elect judges in Pennsylvania?  So candidates can do their best to convince the public that their opponents are evil? Call it what you will – deception or lies – is this type of smear campaign an inevitable result of forcing candidates for the bench to run for their positions? It is an unfair burden to ask those meant to be impartial interpreters of the law to justify their qualifications in expensive 30-second sound bites.

The AP’s report on a speech retired Justice Sandra Day O’Connor gave Monday at Seattle University Law School opens with this eye catcher:

The first woman to serve on the U.S. Supreme Court says there’s a serious problem with the government in Washington and many other states: They elect their judges.

O’Connor spoke at a conference addressing the recent Caperton v. Massey decision, which we have blogged about previously. “‘Multimillion-dollar judicial campaigns make it difficult to know whether a judge is deciding a case based on the merits or on concerns about reelection,’” opined the former Justice.

O’Connor emphasized how the increase in funding for judicial campaigns poses a threat to the neutrality of the bench: “She told a sold-out audience that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country.”

Consider that last point in light of a potentially broad decision in the case currently before the U.S. Supreme Court, Citizens United v. FEC, which could open a vast new source of corporate funds to be spent on state judicial campaigns. The argument for removing judges from the political process will only get stronger as corporate money plays a bigger role in campaign financing.

Over at Caffeinated Politics, there’s some good advice: “Wisconsin Should Listen to Sandra Day O’ Connor.”  We think that’s a good idea for Pennsylvania as well.