I took the week off from writing a column because we have endorsements beginning to run Wednesday, but this column from 2011 about that year’s state Supreme Court race may have some relevance today. Or it may not. Who knows! Either way here it is:
Judges are elected, so it’s partisan
I have now interviewed candidates for judge enough times to know that it is basically always a frustrating experience.
In normal interviews with politicians, you ask questions like “Would you vote to repeal health care reform?” and “What are you going to do about the budget?” and “Is this a photo of you with a woman who is not your wife?”
And you are justified in expecting answers.
You can’t ask judges any of those things. Well, you can ask, but they will just stare at you as if to say, “We learned how to not answer that question on the first day of law school.”
There are good reasons candidates for judge don’t say how they would rule in a given case or make pronouncements about policies they’d prefer. The role of the judiciary is not like the other branches of government. Instead, as in U.S. Supreme Court Chief Justice John Roberts’ famous analogy, courts are democracy’s umpires.
For this year’s state Supreme Court race between Justice David Prosser and Assistant Attorney General JoAnne Kloppenburg, of course, never mind all that. The race could scarcely be more partisan — not so much on the candidates’ part, maybe, but definitely on the activists’. The liberal Greater Wisconsin Committee made it explicit in its TV ads with the message “Prosser equals Walker.” There’s also a reason conservative talk-radio yakkers like Charlie Sykes on Milwaukee’s WTMJ have spent so much time defending Prosser and attacking Kloppenburg.
So this is the part of the column where the columnist is supposed to decry that partisanship and appeal to the reader’s better angels. I am game: Please, everyone, be less partisan. I mean it.
But on another level, I want to say: Who are we kidding? Obviously the judiciary is a political actor — or it can be, sometimes, when it wants to be. We all remember Bush v. Gore. We’ve all observed that, of the federal lawsuits against health care reform, two decided by judges appointed by Democrats have been dismissed, while two Republican-appointed judges have found the law more or less unconstitutional.
Voters aren’t dumb, and they aren’t crazy to notice that on certain high-profile issues, the partisan shape of the judiciary will affect their desired policy outcomes. Sure, the vast majority of cases the state Supreme Court sees won’t really matter to the average Democrat or Republican. But on those few cases that do …
So, what is the remedy? It isn’t public financing, evidently — both candidates in this race took public financing and this is the most partisan Supreme Court race since, um, the one three years ago.
One remedy might be to just embrace it: Elect judges as Democrats or Republicans, as states like Texas do, and have them be, more or less openly, just politicians who wear robes.
I think a better solution is to stop electing Supreme Court justices. That wouldn’t take partisanship out of the process — judges would be appointed by whichever party wins elections — but it would make it look less like a direct transaction, where a vote or a donation buys a given policy outcome. Appointed judges would be one step removed from politics. They wouldn’t owe their seats to Wisconsin Manufacturers and Commerce or the AFL-CIO. That seems better.