Sunday, March 1, 2009

Right and Wrong

A Wisconsin Political Fix
not just another blog
March 1, 2009

By Bill Kraus

Judge Barbara Crabb has turned her relentless logic on our judicial elections. Our first exposure to this admirable trait was when she told the state of Wisconsin, in effect if not in fact, “You cannot ban gambling and indulge in it.”

Her ruling on the rules surrounding judges and politics is equally logical. The rules are that judges cannot run as partisans or do partisan things like make donations or join parties. Judge Crabb says, “Who are you kidding?"

She points out that most judges get the job in the first place by appointment. These appointments are made by governors who are partisans and are unlikely to stray far from their list of political loyalists when looking for candidates for these jobs.

Even those few judges who are elected to open seats do not come full grown from the brow of Jove. They have some kind of political history and credentials.

It follows then that any voter who is interested and semi-conscious will know where the state’s judges are coming from politically and ideologically.

The attempts to deny this reality started when rules about non-partisanship were promulgated in 1913. These were reaffirmed in 1968 and strengthened again as recently as 2004.

In the new world of special interest politics, Judge Crabb says, party affiliations are not the problem anyway. The remedy to this new, more powerful threat to objectivity is a combination of disclosure and recusal. A judge who takes a campaign contribution from, say, the organization that is interested in school choice should reveal that and recuse him or herself if, as, and when a case on this subject comes before him or her.

Well and good, even though it may cause some difficulty in rural Wisconsin, where a judge is likely to have a friend or contributor involved in a lot of otherwise routine litigation.

The problem with following the judge’s logic so literally and single-mindedly is it goes against the probably unattainable ideal we seek from judges: a kind of impartiality which approaches pure disinterest.

We don’t always get it. It may even be, like the song in Man of La Mancha, an impossible dream.

It is worth aspiring to nonetheless. It's something every judge should have as a goal or a code of conduct.

The excesses of partisanship are unavoidable in the legislative and executive offices where we vote for people who share our beliefs.

What we want when we enter a courtroom is not favor but fairness.

A dispassionate judiciary is a worthy idea. Overt partisanization is not.

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