Pointing toward appointing

By Bill Kraus


Among the longest running lost causes in Wisconsin is the occasional attempt to move away from an elected judiciary to one of the several systems many other states use to appoint judges is the least likely to change.

Or not.

Electing judges is in our Constitution.

Electing everybody is in our genes.

Former Supreme Court justice Sandra Day O’Connor spoke to the annual meeting of the Wisconsin State Bar Association last year and urged that organization to urge the state’s political leaders to change the Constitution so the state could appoint instead of elect judges.

With the sole exception of the Wisconsin State Journal’s editorial page editor Scott Milfred, every other member of the panel picked to discuss this subject pretty much dismissed the prospect of this ever happening.

“We elect coroners,” one panelist pointed out.

“We elect people to offices which have no function or whose function has been usurped or diminished to the point of virtual inconsequence,” another said.

The consensus was not only that a change would go against 162 years of history and every bone in our collective bodies, but that we had kind of stumbled into the best possible system for electing judges.

We elect judges in non-partisan, low-turnout spring elections.

Candidates for these offices put together campaigns and campaign organizations that, irrespective of their histories in politics, are designed to convince the electorate that they will truly aspire to non-partisanship if elected.

It was impossible not to acknowledge that some outsiders had infiltrated the process and that partisan toxicity had raised its ugly head from time to time. Most of us on the panel figured this was an aberration and the recently enacted Impartial Justice Bill would stop this unseemly trend by removing candidates for the Supreme Court from the sordid business of raising money for their campaigns and raising the suspicion that they might have been bought or would have to recuse themselves from cases where their fiscal supporters' views were involved.

Then along came 2011, a year of high dudgeon, protests, a Supreme Court election where the main issue was not judicial competence but what judgment the candidates would likely take on highly partisan questions that might come before the court.

Personality and partisanship came to the fore and dispassionate judiciousness faded into the background.

This most deliberative elected body was further tainted by, of all things, an investigation of possible assault and battery.

In a few short, tumultuous months we have gone from “No way, Jose” to the possibility that appointing justices (and judges) in a highly partisan, high election-cost era may be not only the best but possibly the only route to a judicious judiciary.

Two respected state senators think so and will introduce a resolution which will be the first step in moving to that wholly un-Wisconsin-like system, and a large and surprising number of citizens are saying, “It’s about time.”

The side effect of this totally unexpected, unprecedented development is that it is a shot across the bow of those who are or think they are benefiting from the rise of polarized, partisan politics.

It may even give the all powerful legislative leaders pause about going full speed ahead in other areas where the citizens may be ready to react to excessive partisanship. Redistricting comes to mind.

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Bill Kraus is the Co-Chair of Common Cause in Wisconsin's State Governing Board