Wisconsin has become 'exhibit A' for not electing judges

Opinion Zone,Christopher Murray

Now that the protests in Madison have largely come to an end, the battle over Governor Scott Walker’s Budget Repair Bill has moved to the courts.  Last week a Dane County judge halted the implementation of the bill, at least temporarily sustaining the argument that the passage of the bill violated the state’s open meetings law.

It is assumed that this case will ultimately find its way in front of the Wisconsin Supreme Court.  While this conflict may inevitably be decided by the state’s justices, this path through the courts highlights an unfortunate aspect of Wisconsin state government—namely the fact that these same justices are subject to election.

Like many states, Wisconsin has an elected judiciary. 

A product of Wisconsin’s proud Progressive tradition, judicial elections were devised as a way to increase the accountability and transparency of government.  Unfortunately, in their modern manifestation judicial elections have been subject to the same complaints and criticisms that mar the election of legislators and governors.  With prospective judges needing to raise funding in order to mount increasingly expensive campaigns, judges’ rulings are parsed for connections with their donors’ interests.  Furthermore, the ability of outside groups to spend on behalf of judicial candidates has further muddied the ability of many to have faith in the impartiality of state judges.

During a recent Wisconsin Supreme Court campaign, for example, the record amount of spending and electioneering led to an investigation into the behavior of the ultimate winner, current Justice Michael Gableman.

In just a few weeks, Wisconsin voters will again go to the polls to decide whether current justice (and former State Assembly Republican leader) David Prosser will keep his seat on the bench or whether he will be replaced by challenger JoAnne Klopenburg.  As a story in Sunday’s Milwaukee Journal Sentinel recounts in gory detail, the current court has become virtually dysfunctional and highly polarized as a result of the toxic politicization wrought by recent campaigns.  Prosser’s judicial temperament has been challenged by others on the court and this has now spilled into the open.

In this environment April 5th’s election has become a de facto referendum on the Budget Repair Bill, especially for those trying to find a way to overturn the law.  Rather than evaluating Klopenburg’s judicial philosophy or record as an Assistant Attorney General, many anti-Walker voters are projecting onto her the belief that she will side with them and vote to overturn the law. 

Similarly, they feel that Prosser will simply side with the governor, acting more as a partisan than a neutral arbiter.  Previous statements by his former campaign manager gave Klopenburg supporters reason to harbor such fears.  One can be certain that the coverage immediately after the election will focus on what it says about the future of the governor’s bill.

This is exactly the wrong way to choose judges. 

Regardless of how one feels about the Budget Repair Bill, making a judicial election a proxy fight for that (or any other) bill serves to further politicize the bench.  It will delegitimize whatever rulings the court passes down in the future and will subject judges’ motivations to second guessing.  While we expect legislators and executives to defend their actions to voters and the press, the image of judges on the stump, holding fundraisers, and taking to the airwaves to advertise their campaign should give all voters pause.

Since her retirement from the U.S. Supreme Court Justice Sandra Day O’Connor has been active in trying to convince states to move away from judicial elections and toward a process that removes judges from the need to campaign for the seats.  Her efforts have led to reforms in a number of states. 

One bright spot in Wisconsin is that the state has implemented a public financing process by which both Justice Prosser and Klopenburg are abiding.  This financing, though, has not prohibited outside groups from spending heavily on the race.  Unfortunately, Governor Walker’s budget proposal for the coming fiscal cycle would eliminate this program

While most of the cameras and reporters have left Madison in search of the next story to cover, activists in Wisconsin have turned toward litigation.  That this litigation will be filtered through a highly contested and politicized election doesn’t bode well for the ability of the Wisconsin judiciary to remedy a situation that has paralyzed the state.  

Wisconsin voters should insist not on a particular ruling, but rather a new process for selecting those called upon to deliver it.


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