Pretend that you own a cow and have submitted it to your local dairy cattle judging contest. Minutes before the competition begins, the judge stares at the sun, goes blind and cannot continue judging. The other contestants look to you to choose the judge's replacement, because you radiate quality leadership. Will you pick the person most qualified to assess cattle? Or will you choose the person most likely to declare your cow the winner because you already believe in the superiority of your cow?
Now imagine the same situation, but involving the Wisconsin Court System. Justices and judges of the state Supreme Court and the Court of Appeals are elected through general election, as opposed to the appointment and confirmation system used in roughly 30 other states and at the federal level.
Some voters, such as the Wisconsin Right to Life anti-abortion group, would prefer to march to the polls knowing exactly how each judicial candidate plans to rule on key issues. Unfortunately, a few tiny snags prevent voters from knowing the exact ideological orientation of the candidates.
One requires the elections to be non-partisan. Another states that the candidates for office are not allowed to "make any public comment that may reasonably be viewed as committing the … candidate to a particular case or outcome." In other words, the judge and justice hopefuls may not say anything that would infringe upon their impartiality, such as giving promises to vote a particular way on a given case or issue. A judge or justice must also excuse himself from a case if he previously stated anything that could call his impartiality into question. Because of these provisions, most, if not all, of the judicial candidates (six out of seven total in 2006, according to the Wisconsin State Journal) decline to state their views and offer instead their qualifications and résumés.
Wisconsin Right to Life seeks to eliminate these provisions. Last Sunday, they told the Wisconsin State Journal that voters need to know where the candidates stand, and that the current system is a "joke." Last Tuesday, they took their case to the federal courts, arguing that the laws violate the First Amendment. They have a good chance of winning their case, as similar cases have triumphed in Minnesota, Alaska, Indiana, Kansas, Kentucky and North Dakota.
The defense counters that the current provisions provide the best way to prevent judicial bias. Judges are not supposed to decide or commit to a decision before they hear a case; they must approach the hearing with an open mind and without external pressure.
Both sides of this dispute are correct. Although Wisconsin Right to Life's case irritates me because it does not use the First Amendment of the Bill of Rights to protect anyone's constitutional birthright but rather to benefit its own prized metaphorical cattle; the group is right in asserting that the government should not prohibit anyone from making public promises or declaring his or her views. Other justices can certainly prevent a judge from deciding a case if they believe that judge's objectiveness is compromised, but to prevent someone from stating his views or making a promise certainly flouts the First Amendment in my mind and in the minds of the judges who decided similar cases in six other states.
But this does not mean, as the defense states, that would-be judges should announce their political orientation to voters, or begin any sentence with the words, "If elected, I promise to." Neither should the voters choose judges based on ideology or likelihood of voting a particular way. Judges must approach each appeal with an open mind and declare their verdict based solely on the facts at hand; nursing preconceived biases before a case creates an unfair court hearing that is anything but judicious.
How, then, can Wisconsin ensure its Court of Appeals judges and Supreme Court justices are qualified and won't make any reactionary decisions? Simple: Wisconsin should not hold statewide elections for its judges and justices. Wisconsin Right to Life is correct on another point — voters want to see their own values reflected in a candidate. Unfortunately, the judicial system is not meant to represent a constituency. The legislative branch reflects the views of citizens, while the judicial branch, especially the Supreme Court, acts as a safeguard from unconstitutional legislation.
The nomination and confirmation system used in most other states and at the federal level ensures the appointment of justices based on qualifications more than viewpoints. Although cronyism is alive and well in the current administration, President Bush's nomination of the woefully unqualified Harriet Miers for Supreme Court in 2005 never had a prayer of passing through Congress (a Republican-controlled Congress, at that). Just like you couldn't be trusted to nominate a judge for your own prized cow, the public can't be trusted to nominate judges for their own prized issues.
Jack Garigliano ([email protected]) is a freshman majoring in English.
