“Elections have consequences.”
This phrase is often used by the victors of an election when passing controversial legislation. I will be the first to admit that I myself have often used this phrase, especially during the collective bargaining debate following Gov. Scott Walker’s election. However, that is not the election to which I refer. Elections also have consequences in the Wisconsin Supreme Court.
The Wisconsin Supreme Court is the final arbiter of justice in the state. They are unbiased. They interpret the law not how their political beliefs dictate them to, but how the Constitution dictates. With the title of “justice,” those serving on the Supreme Court become the pinnacle of what it means to be a legal scholar. They are revered by lawyers, who peer reverently up at them on their high bench and ask them what the law means, knowing they will receive the right answer.
At least, that is how it should be.
We see a very different portrait of the state Supreme Court justices today. We see a group of grade school children, dressed in their parents’ clothes, bickering. When one of them bites, the other cries to mommy – or, in this case, the media. They leave their dirty laundry on the front porch, and no one takes them seriously.
The Supreme Court is slowly losing its credibility because of the recent events surrounding Justices David Prosser and Ann Walsh Bradley and Chief Justice Shirley Abrahamson, and not just with conservatives or liberals, but with everyone. The legal community is especially embarrassed to see the pinnacle of its profession fall so low.
As a law student, I interact with judges, law clerks, private lawyers, federal public defenders and many more lawyers from all walks of life. As the controversies arose, officer chatter was abundant. While there were disagreements as to who is to blame, the same common thread ran through everything: “This is ridiculous.”
While the individual justices are certainly responsible for their own actions, behavior such as this is part of a larger, more systematic problem: the election of Supreme Court justices. Electing instead of appointing justices based on their credentials creates several unintended consequences.
First, elections breed partisanship. When running in an election, a candidate has to juxtapose his or her self against their opponent in every way possible. This not only includes comparing one’s skill sets and qualifications, but also pointing out each other’s flaws. This creates a conflict not only between judicial philosophies, but political beliefs and personal characteristics, drawing a permanent line in the sand. Therefore, when legal principles should be the only thing on which justices should base their decisions, extraneous factors such as politics come into play, warping the very foundation of the court.
Second, elections create constituents. In a normal election, a politician feels a sense of responsibility to those who elected him, and he knows he must continue to appease them lest they vote him out of office. The Supreme Court justices should have no constituents and answer to no one but the law. However, when elected by a body of citizens, those people expect a certain level of cooperation.
A prime example was the race between Prosser and JoAnne Kloppenburg. Kloppenburg continually cast Prosser as a conservative by referencing his time as a Republican member of the state Assembly, whereas Prosser emphasized Kloppenburg’s affiliation with liberal and Green Party candidates. By drawing analogies to the collective bargaining bill, liberals voted for Kloppenburg to overturn the bill, where conservatives voted for Prosser to uphold the bill. The very idea of voting on the legality of a particular piece of legislation is absurd. Should Kloppenburg have been elected, she would have felt obligated to decide that the collective bargaining bill was unconstitutional, and vice versa for Prosser, regardless of what the law said.
Finally, with constituents comes issue-based campaigning where justices run on issues such as the collective bargaining bill, pro-life/pro-choice, hard on crime, etc. For example, the public asked both Kloppenburg and Prosser about their opinion on open meeting laws during their debate. A judge should not have a solid idea of what legal issues they think are constitutional or not before they get into office. Being a judge involves looking at the legal issues presented to you and ruling based on the law and the constitution. Preconceived notions should play no role in a decision. However, issue-based campaigning brings out the justices’ notion of the law before they even arise.
Looking only one year back, it is clear that electing justices goes against the very idea of the what the Supreme Court represents – a fair, unbiased representations of the law. Eliminating the election of Supreme Court justices will go a long way to reforming and rebuilding the institution which the public has seen fall in the past couple of months.
Alex Brousseau ([email protected]) is a second year law student.
