Earlier this year, Rick Esenberg, a visiting assistant professor of law at Marquette University Law School and a member of the Federalist Society wrote an important report called “Everyone’s Business: Emerging Issues in the Wisconsin Supreme Court” that analyzed issues such as financing for public education, the definition of marriage under Wisconsin’s constitutional amendment on the subject and enterprise liability in tort law.

While the report focuses on Wisconsin’s judiciary, Esenberg’s arguments apply to many other states as well. Esenberg writes:

The Wisconsin Supreme Court remains sharply divided on a variety of significant issues, and these issues will have a profound impact on the state. This state of affairs points to the need for vigorous and open debate, not only on the qualifications, but over the proper role of the judiciary in this state.

That, in a nutshell, is the case for democratic judicial elections instead of “merit selection.” “Merit selection” stops the public from participating in that vigorous debate, leaving these issues that dramatically affect people’s lives in the hands of self-appointed experts from the legal profession chosen in secret by an unelected commission.

Esenberg concludes that these and other issues “are seen by good and honest judges in different ways. Voters are entitled to know something of these differences.”
Report