Wisconsin has undoubtedly become a storm center in the debate over the future of judicial elections. This spring we are set to see the latest episode of a long-term effort by partisan Republicans and conservative interest groups like Wisconsin Manufacturers and Commerce to unseat incumbent Democrats from the state judiciary. Democratic Chief Justice Shirley Abrahamson is being challenged by Republican Circuit Court Judge Randy Koschnick. Critics have predicted that, like the election before it, this one is likely to get nasty.
It is difficult not to be intrigued by proposals to fundamentally change the way Wisconsin does judicial elections. Proposals have ranged from abolishing them to developing a public financing program to moving to a “merit system” where justices would be appointed according to their professional credentials and then given retention votes in periodic elections.
The rationale for these proposals is simple — law is and ought to be different than ordinary politics. Judges ought to be neutral and nonpartisan, or, at the very least, they should leave their ideology at the door when they do their sacred work. They should be insulated from our society and the masses so they can go about their task of mechanically applying our laws to an infinite number of fact permutations and producing something we call “justice.”
Well then, how about we go back to earth? Law is different than ordinary politics, but not as different as those who go about lambasting judges for not adhering to strict interpretation of the constitution would have you believe. Judges are actually charged with a task which has pulled principled patriots and soul-searching philosophers in irreconcilable directions for our entire history. This does not mean that judges aren’t doing their jobs or respecting the law. Reasonable and principled people can and do come to different conclusions about individual cases, especially in cases involving abstract concepts like “equality,” “liberty” and “due process” where judges are not given much more guidance than the concepts themselves followed by an imperative to protect them.
Political scientists have sometimes done empirical studies showing that, statistically speaking, most of the variation in judicial voting can be predicted by simply identifying the party identification of a particular judge. To paraphrase these scholars, we know that Justice Shirley Abrahamson votes the way she does because she is very liberal, and Judge Koschnick votes the way he does because he is very conservative.
Rather than sit around disillusioned and plunging into nihilism, we need to look at this and re-evaluate the way we think about judicial elections. The single biggest problem facing our system of judicial elections isn’t control of the candidates, negative advertising, and campaign financing. Instead, it is mystification on the part of the electorate. As one survey by the group Justice at Stake showed, “29 percent of Americans who do not vote regularly or at all in state judicial elections give as their reason that they do not know enough about the candidates running for office. Nearly three-quarters (73 percent) of respondents indicated that they had only some or a little information about candidates; 14 percent said they had no information at all about those in the race for positions on the state court bench.” No doubt this is partly because of our collective unwillingness to see the interpretation of laws as an interesting task open to anybody willing to venture down that path.
In January, Rep. Steve Nass, R-Whitewater, accused Abrahamson of being unethical in her use of a University of Wisconsin Law School newsletter to advertise her search for an elections intern. It was basically a political non-issue, and, frankly, most people would probably be happy if this campaign is nothing but a series of non-issues. This is an entirely understandable sentiment following a campaign that was essentially decided by a below-the-belt racist advertisement, and insofar as we are talking about running respectful campaigns, I couldn’t agree more that things need to get better.
But a much better way to handle this disturbing rise in dirty campaigning is to strike at its source: The popular belief that substance, ideology and politics (in the highest sense of the word) are no topics for the law and for judges. Here’s the truth about judicial elections: We are essentially putting the candidates out there to fight armed with nothing. Naturally, they’ll resort to clawing, biting and spitting to win because, after all, elections are about winning. In short, we’ve given judicial candidates a double standard.
Some conservative groups have managed to see the crippling effects of this mystification and double standard and have seized on the opportunities to exploit others’ unwillingness to engage in discussion of policy issues, but most liberal groups and candidates have dropped the ball. An exchange at the recent debate between the two candidates is illustrative. Koschnick accused Abrahamson of voting in favor of criminal defendants 60 percent of the time and all that Abrahamson could manage was to say, “I’m elected to judge, not prejudge,” Abrahamson said. “I have tried to do the right thing … (people) know I’m in no one’s hip pocket.” Koschnick’s accusation was a fastball right down the middle of the plate, and this is at best a single. Instead of raising the level of discourse and perhaps even showing how Koschnick’s apparent notion of quota for convictions runs counter to common conceptions of justice, moderate to liberal judges have consistently retreated into an unfortunate attempt to make judicial elections more idealized and sterile.
The best way for these groups to address the problems plaguing judicial elections in Wisconsin is to displace the negativity by injecting life into these campaigns in the forms of voter education and a head-on embrace of critical societal issues and judicial philosophies. This is a healthier and more realistic way forward.
Dan Walters ([email protected]) is a graduate student studying political science and law.
