Getting The Facts Straight On Judicial Elections In WI (And Elsewhere)
September 11, 2008
Law360 (subscription required) just published a long article on the debate over democratic judicial elections vs. “merit” selection, with the usual gnashing of teeth over the financial “arms race” in judicial campaigns legal elites fret is damaging our courts.
The piece, by Evan Weinberger, leads off with Wisconsin’s recent judicial election, where voters ousted incumbent Supreme Court Justice Louis Butler. The article leaves the impression that Butler was a martyr to the influence of money and special interests. This explanation might fit the storyline of well-financed groups who oppose democratic judicial elections or support efforts to weaken public oversight of the courts, but it doesn’t square with the facts.
In a recent report published by the Wisconsin Policy Research Institute, Charles J. Sykes reveals that Justice Butler came to the bench only after being soundly defeated by Wisconsin voters. Once there, he promptly shifted the balance of Wisconsin’s Supreme Court sharply to the left, with activist rulings that coincided with the political agenda of the powerful trial lawyers lobby. Writes Sykes:
Butler was appointed to the job after having been explicitly rejected by the voters. [Gov.] Doyle named him to the high court despite and quite possibly in open defiance of the verdict of the electorate in 2000, when Butler lost a race for the seat by a 2-to-1 margin. In effect, Doyle’s appointment (which required no confirmation by any elected or unelected body) overturned the clear results of the election.
When Butler came on the court in 2004, he and other members of the newly-created liberal majority could have been cautious and incrementalist in their rulings. Instead, they moved hard left, aggressively ignoring precedent and substituting their judgment for legislative decisions and acting as a “super-legislature.” On issues ranging from crime to tort litigation, the court’s sweeping departures from past practices drew national attention, and ultimately changed the nature of elections for justices.
In the Law360 article, Bert Brandenburg of Justice at Stake lays the blame for the “arms race” on contributions by outside groups and suggests changes ranging from public financing to “merit” selection to “fix” the “problem.” The primary outcome of all these proposals would be to keep the people at arm’s length from the judicial selection process and insulate judges from the voters they are on the bench to serve. Moreover, as Sykes argues, these proposals “miss the point”:
The fault [for more contentious and expensive judicial elections] lies not with the public or even the “interest groups,” but rather with the justices themselves. When judges act like politicians, the judicial selection process – elected or appointed – becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices.
When justices arrogate political policymaking to themselves, they should not be surprised when they are held to the same standards as politicians…. By acting as super-legislators and super-governors, they transformed elections for the court into the sorts of campaigns associated with heated contests for legislative seats and the governor’s chair.
Weinberger cites a 2002 poll which reported that 76% of voters believe campaign contributions impact judicial rulings as evidence that people believe some type of reform is necessary. But a 2008 poll for the American Justice Partnership Foundation found that an overwhelming 75% of American voters believe state Supreme Court justices should be elected by the people and only 21% favored the so-called “merit selection” process – where a small commission of lawyers meets in secret to decide who will sit on the bench.
These results seem contradictory, but in fact they aren’t. Voters intuitively understand that a healthy dose of democracy – the rule of the people expressed through elections – is the best check on judges who abuse their power by deciding cases based on campaign contributions.
Everyone agrees that state judicial races – like all elections – have gotten too expensive and too negative in recent years. The most effective way to lower the temperature and spending levels in judicial campaigns is for judges to abandon their activist inclinations, stop substituting their own political or social preferences for the rule of law, and return to interpreting the law, not legislating from the bench. Until then, our only option is to encourage the people, through democratic elections, to hold judges like Justice Butler accountable.