Highest court deserves higher standard

by Alec Slocum

Tuesday, November 25, 2008 00:00

Believe it or not, free and fair elections may not always be the answer.

Last Monday Randy Koschnick, a Jefferson County Circuit Court Judge, announced he will challenge seated Wisconsin Supreme Court Justice Shirley Abrahamson for her place on the bench of Wisconsin’s highest court. In what likely seemed the same breath, Koschnick proclaimed he was a “judicial conservative,” and attacked the liberal bloc of “activist judges.” In repeating this grossly inaccurate but politically rewarding characterization, Koschnick assured any skeptical observer our next state Supreme Court election will indeed follow directly in the footsteps of the previous two, which gained national attention for their corrosive effect on the stature of our judicial system. Once again, the voters of Wisconsin will decide the composition of our state’s highest court based on partisanship and politics, rather than qualifications and merits.

What should make the selection of Supreme Court Justices different from members of the Legislature comes down to the fundamental purpose they serve in a democratic government. While the Legislature is intended to act as a hired hand for the majority, the state Supreme Court serves only to interpret and enforce the respective laws of the state as well as the state and federal constitutions, regardless of what popular opinion thinks about it. In electing justices, we risk convoluting these distinct roles and in so doing, opening the door to what critics of democracy said would cause it to fail and friends feared it would produce — a tyranny of the majority.

Thus, in order to serve its purpose effectively, the judiciary needs to be insulated from the popular will, rather than made accountable to it.

While electing justices in the first place is bad enough, what makes the situation in Wisconsin even worse is the electorate’s utter inability to identify and focus on issues of actual concern to a sitting member of the Supreme Court. If the most recent Supreme Court races are any indication (I can’t imagine what would be a better indication), voters are mostly concerned with whether “Loophole Louie” allowed a “rapist to go free” by defending a man’s constitutional rights as a public defender, and whether Annette Ziegler was “soft on sexual offenders” by refusing to put them in solitary confinement for the remainder of their lowly existences (that may have been a slight exaggeration). Neither of these cases displays scenarios that would be dealt with more than rarely at the state Supreme Court level. So, not only are we exposing these justices to the popular will, we are exposing them to a grossly negligent and uninformed popular will. The electorate’s love for crime control models championed by television and movies, and misplaced hatred for “loopholes” is blinding them with partisanship and resulting in the neglect of careful consideration of relevant qualifications and merits necessary in justices.

The final nail in the coffin of Supreme Court elections is the fact that there is no hope for the discourse of these campaigns to improve. The candidates’ campaigns were outspent nearly 10-1 in television advertising in last year’s Supreme Court election by outside groups who know how to exploit the minimal knowledge our electorate has regarding the legal system. Neither the relative knowledge of the electorate nor that kind of outside spending is going to change in the near future, and thus, neither will the dialogue.

Luckily, alternative methods of judicial selection are available. One such alternative system is to mirror the federal selection process by having the governor appoint the justices. However, given that only 6 percent of Wisconsin residents favored gubernatorial selection according to a recent statewide poll, it is likely best to look elsewhere.

The other proven alternative is “merit-selection,” in which a non-partisan commission composed of public officials, bar association officers and private citizens nominates a small group of qualified candidates to an appointing authority (likely the governor) who approves one of the suggested candidates. The selected justice then continues to come before the commission for re-approval after certain allotments of time.

Merit selection offers the opportunity to skip the corrupting influence of fundraising, attack ads and the uninformed electorate inherent in elections, as well as the absolutist partisan politics commonly prevalent in gubernatorial appointment, and focus to a greater extent on the merits and qualifications of possible justices.

It is, quite plainly, our state’s best option, and the only viable way to ensure the integrity of our state’s highest court — a goal worthy of top priority. In order to accomplish this, the change to a system of merit selection needs to be made sooner rather than later.

Alec Slocum (awslocum@wisc.edu) is a junior majoring in philosophy and legal studies.