Eliminating judicial elections is not the answer

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An opinion piece by the Wisconsin State Journal’s editorial board, which ran Jan. 12, proposes getting rid of judicial elections, in favor of selection by a “non-partisan committee” that would forward several names to the governor based on “merit.”

The only reason the board gives is that this would remove the influence of money and partisanship from the process.

The editorial advocates that Wisconsin select its justices the way they do in Missouri. However, Missouri’s system is not without flaws either. A recent article in Missouri Lawyers Weekly notes:

“Grumbling over the plan has never really stopped, but the nature of that grumbling has changed somewhat. In the 1940s and 1950s, critics attacked the plan because governors were appointing too many members of their own party to the courts. In contrast, critics today have attacked the plan for giving Gov. Matt Blunt nominees whose politics do not match his own.

“Somewhere along the 67-year history people’s perceptions of the Nonpartisan Court Plan have changed. Early descriptions of the plan envisioned a system in which Democratic and Republican appointments equaled each other. These days, governors openly seek to leave their marks on the court, appointing men and women who, while well qualified, fall within certain partisan and ideological parameters.

“That’s not surprising, given the history of the plan. According to a Missouri Lawyers Weekly analysis of the plan’s history, only four of the 33 appointments to the Missouri Supreme Court have crossed party lines. State historical records and contemporary news articles show that nearly every candidate for the court has had some kind of identifiable partisan label, from election or appointment to office, or participation in local politics.”

In short, the Missouri system that the WSJ advocates is more partisan than our own.

Furthermore, Missouri adopted its method of choosing justices because their elections had been taken over by the Pendergast Machine in Kansas City, one of the most corrupt political machines in the nation. If a political machine has taken over judicial elections in Wisconsin, warranting similar changes to the state Constitution, it is news to me.

The last election generated enormous campaign expenditures; the previous election, won by Justice Patience Drake Roggensack, generated very little. Both were won by judges who, if chosen by a committee reviewing the merits, would easily have been deemed well-qualified.

Even if Roggensack had lost, to either Judge Brunner or Judge Higginbotham, any objective observer, rating the merits of those candidates, would certainly have declared that a well-qualified person had been elected.

Justice Louis B. Butler is likely to be reelected, for one reason — incumbency. But should he lose, it will be to a candidate who would be deemed qualified by an objective government committee.

Suppose the last election between Justice Annette Kingsland Ziegler and attorney Linda Clifford had been a low-key, low-budget affair. Who does the WSJ editorial board suppose would have won? Ziegler would have won, for one simple reason: prior judicial experience.

In my lifetime, many attorneys without prior judicial experience have been appointed to the Supreme Court, but none have been successful in seeking election.

When Wisconsin electors vote for a Supreme Court justice, they favor: first, incumbents; and second, candidates with prior judicial experience.

That preference is abundantly demonstrate by past elections. The current diversity on the court rebuts any theory that electors vote based on a preference for progressives, conservatives, or partisans of any party.

Any government committee reviewing candidates for experience and “merit” would favor candidates with prior judicial experience as well.

Until an objectively unqualified, but over-funded, candidate is able to mount even a credible campaign for the position of Supreme Court justice, the WSJ’s proposal is nothing but a solution in search of a problem.

It is also one that would likely make the process more political and partisan than it is now.