Commentary

Wisconsin should stop electing justices to the state Supreme Court

February 21, 2023 6:30 am

Wisconsin Supreme Court chambers. (Baylor Spears | Wisconsin Examiner)

It’s been weird to watch Democrats, progressives and advocates for “revitalizing democracy” in Wisconsin root for the big-money candidate in Tuesday’s primary election for the Wisconsin Supreme Court. 

Liberal candidate Janet Protasiewicz has raised a record-breaking $2.2 million — about half of it from out of state, WisPolitics reports — in a race the New York Times dubbed “arguably the most important election in America in 2023.” 

Wisconsin’s gerrymandered voting maps and our draconian 19th century abortion ban could soon come before the court, and the April 4 general election will likely determine the body’s ideological balance and thus the outcome of these cases.

But liberals who hope to elect a court majority with a more pro-democracy bent are in the contradictory position of trying to achieve that goal by leveraging out-of-state donations from the very rich.

Protasiewicz’s campaign touted her fundraising prowess in a press release recently, sending a strong signal to her opponents in the four-way primary that they might as well get out of the way — especially her fellow progressive candidate Dane County Circuit Judge Everett Mitchell, who has raised a mere one-tenth as much as Protasiewicz’s haul. 

This is the pragmatic new reality in Wisconsin. Over the last couple of decades the Legislature got rid of public financing of state Supreme Court elections, rewrote campaign finance law to allow people to give up to $20,000 to candidates and eliminated the ceiling on donations to political parties.

We are now swept up in a massive money war with out-of-state interests pouring more and more cash into electing the supposedly impartial justices who decide important cases in our state.

And all that money and politics have dramatically degraded our highest court over the last decade and a half.

In 2008 the floodgates opened, with the dramatically expensive and shockingly dirty campaign by Michael Gableman challenging Wisconsin’s first Black Supreme Court justice, Louis Butler. Gableman won, despite the opposition from the majority of other judges in the state and a rebuke by the Wisconsin Judicial Commission for his misleading ads against Butler.

Gableman’s election flipped the ideological composition of the court, giving conservatives a 4-3 majority, and ushered in an era of ethical laxness, in which justices refused to recuse themselves from cases involving their campaign contributors and rejected ethics rules.

Fast forward to today. Whoever wins Tuesday’s primary, there will be even more money pouring into Wisconsin ahead of the April 4 general election.

Rightwing mega donor Diane Hendricks has maxed out her individual donation to conservative candidate Daniel Kelly with a $20,000 contribution. So did Leonard Leo, a Virginia attorney and co-chair of the Federalist Society’s Board of directors, WisPolitics reports.

“Democrats need to beware,” says Matthew Rothschild of the Wisconsin Democracy Campaign. “They may be winning right now in the money, but that’s not going to last forever because there are more rightwing billionaires out there than leftwing billionaires.”

“And in any event,”  he adds, “our politics shouldn’t be a tug of war between a handful of super-rich people on the left and a handful of super-rich people on the right. In a well-functioning democracy, we’d all have an equal tug on the rope.”

One way to get money and politics out of Supreme Court races would be to reimpose the campaign finance limits that were lifted in the Walker era. But that’s swimming upstream in our Republican-dominated Legislature. And anyway, it wouldn’t go far enough. Things were already heading downhill before Walker and GOP legislators poured more slime on the slide, allowing more money to flow into Supreme Court races.

The election of Supreme Court justices was written into the Wisconsin Constitution back in 1848, with the framers carefully distancing judicial elections from general partisan elections, according to the introduction to a brief history of the court by the late Chief Justice Shirley Abrahamson. “Independent judges safeguard our freedoms by deciding cases on the basis of the facts and law, independent of pressure from outside influences,” Abrahamson wrote. “An independent judicial system that dispenses justice fairly, impartially, and according to the rule of law is the cornerstone of our democracy.”

There is no way our current justices can be considered impartial, independent, or immune from political pressure.

That goes for both sides.

Conservatives, including former justice and current candidate Daniel Kelly, have complained loudly that the progressive candidates in the primary this year signaled how they would vote on redistricting and abortion rights by talking about their “values” on those issues.

“I think when someone tells you what their values are in an answer to a legal question, they’re telling you how they’re going to decide a case,” Kelly said in a candidate debate.

“Politics is poison to the work of the court,” he added during the same candidate forum.

But Kelly has been partaking of that poison himself. He received $120,000 in payments from the Republican Party, some of them during his current candidacy, and he actively counseled Wisconsin’s GOP fake electors on their scheme to cast fraudulent Electoral College ballots for Donald Trump in 2020.

What would it take to actually return to an independent, impartial judiciary?

The nonpartisan Election Reformers Network, a Washington DC-based group that works on election administration, independent redistricting and strengthening democratic institutions around the globe, recently released a policy brief on how state supreme court justices are selected across the country. The brief focuses on Wisconsin, and marshals evidence against judicial elections and in support of an approach called “merit selection” by judicial nominating commissions.

While most news coverage is focused on the horse race aspect of the Wisconsin Supreme Court election and the issues at stake, the brief states, the race should “raise the larger question of whether electing state justices makes sense in the first place, particularly in a state as dangerously polarized as Wisconsin.”

In 23 other states, judicial nominating commissions submit lists of nominees for selection by the governor. “Though no system is completely apolitical, many scholars and good government advocates agree that merit selection is the best option for creating an independent and impartial judiciary,” the Election Reformers Network brief states.

The group makes recommendations for the ideal structure and membership of judicial nominating commissions, including a nonpartisan chair and a mandate to choose its own appointee should the governor refuse to pick from its list. In addition, the Election Reformers Network recommends that the commission and its structure “should be established in the constitution to ensure its authority cannot be easily rolled back by a partisan legislature.”

That means the Legislature would have to vote twice, in two separate sessions, to put a constitutional amendment on the ballot as a voter referendum.

Clearly that’s not going to happen overnight. But in order to revive our democratic institutions, in addition to the statewide movement for nonpartisan redistricting and fair maps, we need a push for appointments to the Wisconsin Supreme Court by a nonpartisan judicial nominating commission.

Democrats missed their opportunity to create a nonpartisan redistricting process when they controlled both houses of the Legislature and the governor’s office in 2009. Not getting rid of partisan map-drawing was a product of short-term thinking. Eventually, the side that benefits from a tilted system loses its majority and wishes the field were more even. 

Now Democrats and Republicans are equally involved in the Supreme Court campaign fundraising arms race. 

We need a citizens movement to get money and the politics off the court.

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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is the author of "Milked: How an American Crisis Brought Together Midwestern Dairy Farmers and Mexican Workers" which won the 2022 Studs and Ida Terkel award from The New Press. She is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She lives in Madison, Wisconsin with her husband and three daughters.

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