Judicial opinions aren’t all that.

No, they’re not legislative votes, they’re not policy initiatives, and they’re certainly not supposed to be election fodder.

But in Wisconsin and several other states, they become exactly that this time of year when candidates are forced to run against each other based upon their decisions as judges instead of based on their legal philosophy. This dynamic puts those who would have been previously impartial between a rock and a hard place and erodes the system of justice these judges are supposed to uphold.

All you have to do is ask “Loophole Louie.”

Justice Louis Butler has experienced firsthand the danger of running on honesty, integrity and your judicial opinions — and Circuit Court Judge Michael Gableman couldn’t be happier to take advantage of that fact.

Mr. Gableman, unlike Mr. Butler, has the ironic advantage of being unknown. Running on a record as a circuit court judge, where you have virtually no precedential value to the opinions you give and the judgments you make, is an obvious upper hand.

But it is an unfair advantage and symbolic of the injustice that results from forcing our judges to switch hats, going from guardians of democracy to just another cog in the machine.

Judges and justices are supposed to be impartial, fair and learned observers of the criminal and civil law systems. However, forcing judges to campaign on how hard they will be on crime runs counter to the fundamental purpose of the judiciary.

Hearing judges say — whether they mean it or not — they will become active participants in the already ballooning criminal justice system, is not the kind of comforting language we hope to hear. A judiciary that blindly follows the whims of prosecutors and detectives alike is akin to eliminating the need for it in the first place.

Judges and justices in the criminal system are supposed to be the last stand between your freedom and your captivity. Having a judge who is too afraid to write what he or she actually logically agrees with is precisely what we should avoid if our constitution is to mean anything.

Criminal defendants on their last leg of a meritorious appeal would be less than thrilled about the prospect of a judge avoiding issues altogether because of fears of electability — which would certainly be out of place with our constitutional and judicial culture. But, as unfair as it is, it is merely one symptom of a broken system that forces judges to run on their opinions.

The judiciary is supposed to be the guardian of democracy because it is what we, in our justified wisdom, have designated as the protector of minorities from the majority. Given the downright oppressive pressure to not be counter-majoritarian in society today, the rights of minority groups already run dangerously close to being irrelevant in the legal community, and elections for judges exacerbate this already growing problem.

Running to appease the majority is not the function of the judiciary — that’s the Legislature’s job. And turning the judiciary into the Legislature all but guarantees that the majority will not be regulated or moderated, but hegemonic and disrespectful to the sensitive issues that affect minorities in a society as diverse as ours.

What’s worse about all of this is that the system does not need to be this way. A system like the one used in federal courts is much more consistent in ensuring judges remain protected from irrational majorities while still maintaining a democratic oversight of the process.

Democratic oversight protects the majority, but the appointment and retention process ensures our federal judiciary remains independent and honest with their decision-making, protecting all who go before the court. In the federal system, those who dislike specific judicial appointments by elected officials have recourse — vote the officials out.

But in Wisconsin, we don’t do that. We give carte blanche to a public that is both too reactionary and too self-interested to make decisions benefiting minority rights on fundamental issues.

That power was supposed to be vested in our judiciary.

Robert Phansalkar ([email protected]) is a first-year law student.