Monday, May 10, 2010

Taking advice

isconsin Political Fix
not just another blog
May 10, 2010

By Bill Kraus

The main message that former Justice Sandra Day O’Connor delivered to the attendees at the recent annual meeting of the Wisconsin State Bar Association was that judicial independence is under attack.

One of the principal reasons for this, she believes, is judicial elections.

Her recommended antidote to this corruption of the judicial system is to replace judicial elections with judicial appointments.

It should be pointed out that she was not recommending the federal appointment system which is partisan-tilted and patronage-driven, but one that is designed to reward merit.

This, however, as the justice’s fellow panelists all pointed out, is Wisconsin. Wisconsin does not just favor elections as a way of choosing public servants. Wisconsin is addicted to elections as a way of choosing public servants. In Wisconsin we elect coroners. We elect people to two constitutional offices that have no function.

This preference is not likely to change.

But we have, kind of quietly and serendipitously, stumbled into modifications of the elective system that may not guarantee that judicial independence will be protected, but comes pretty close.

We start with the Wisconsin tradition of de-toxifying partisanship. With a couple of notable exceptions, which one hopes were evanescent, candidates in judicial races have chosen to put a well known Republican and a well known Democrat in prominent positions in their campaign organizations.

This has two desirable effects. It shows the electorate that the candidate aspires to the independence and open mindedness that we want from the judiciary, and it tempers the campaigns themselves. The attack/demonization tactics that are so evident in partisan politics are pretty much defanged by the mere presence of bi-partisans in the campaign organization.

This is a tradition not a mandate, of course, but it has come to be expected, and because of recent excesses it may become mandated by popular acclaim once again.

Additionally, the last legislative session produced an Impartial Justice Bill which fully funds the campaigns of Supreme Court justices on the condition that the candidates accept spending limits. The funding is not overly generous, but it need not be because of the third thing we do in Wisconsin.

We hold our judicial elections in the winter and spring and separate them from the partisan, big-spending free-for-alls in the fall. The turnouts are abysmally low. Bad. This makes a word-of-mouth shoe leather campaign winnable. Good. Enough media to lay out the beauty contest credentials and then a heavy city-to-city, lawyer-to-lawyer, conscientious-voter-to-voter campaign becomes workable because the turnout is low.

Justice O’Connor may or may not have been convinced that our way is the best way, but I do think we have made the elected part of our process a how-to example of preserving judicial independence while preserving the citizens’ right to elect.

As we know, most judges get the job initially by appointment not election. Justice O’Connor’s ideas on how to get the best and the brightest via appointment can and should be adopted in Wisconsin as well. I have already weighed in on how we can do this here. We should. The remarkable former justice would be pleased. As would I.

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