David Michael Miller
It’s time to eliminate the election of Wisconsin Supreme Court justices and instead move to some manner of appointment system. The court has long been a mess, with allegations flying back and forth and even physical confrontations in chambers.
The court’s ruling in favor of a suit that effectively stopped the John Doe investigation into illegal coordination between Gov. Scott Walker’s campaign and third-party groups seals the deal. Groups that were subjects of the suit (Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce and Citizens for a Strong Wisconsin) gave about $8 million to the four conservative justices who voted in favor of killing the probe.
If this wasn’t flat-out corruption, it is certainly the fruit of a system gone bad. It strains credibility to believe that Justices David Prosser, Michael Gableman, Patience Roggensack and Annette Ziegler didn’t feel at all beholden to the groups that helped put them in their seats.
But even if we can bring ourselves to believe that these four are high-minded enough to forget who brought them to the dance, the groups that did get them there clearly did so in order to get the kinds of conservative rulings they want.
The other two branches of government are designed to sway with the political winds. But top state courts are expected to be more insulated, interpreting the law in a more or less scholarly way instead of responding to political pressures.
That’s why electing supreme court justices has never made a lot of sense even though most states do it that way. Wisconsin should move toward an appointment system. Twenty-four states have a merit selection system in which a bipartisan panel produces a list of qualified candidates from which one is then appointed by the governor. In most cases they serve for a set term and then stand for a “retention” election in which voters can vote to keep them or send them packing.
I actually prefer a straightforward gubernatorial appointment with Senate confirmation like the federal system. Among the states, only Utah has that system now.
If we had had such a system here’s what our court might look like.
Justice Shirley Abrahamson was, in fact, appointed by Democratic Gov. Patrick Lucey to fill a vacancy in 1976. She would likely still be there.
The seats held by Justices Ann Walsh Bradley and Patrick Crooks, elected in 1995 and 1996, respectively, would have been appointed by Republican Gov. Tommy Thompson. If they had followed in Tommy’s moderate conservative image and been confirmed by the Democratically controlled Senate at the time, chances are we might have a somewhat more conservative justice than Bradley, but Crooks would have been exactly the kind of appointment that might have made it through that process.
David Prosser was appointed by Thompson in 1998 to fill a vacant seat, but at the time he was regarded as a thoughtful conservative. He would most likely remain.
Here’s where it gets interesting. The seats of Roggensack (2003), Ziegler (2007) and Gableman (2008) would all have been appointed by Democratic Gov. Jim Doyle. You can bet that none of them would have made the cut. Gableman in particular was found to be lacking in qualifications by his peers when he ran. In fact, Doyle did appoint the impressive Louis Butler, Wisconsin’s first African American Supreme Court justice, to fill a vacancy, but he didn’t survive his first election when he went up against Gableman and a couple million dollars in money from the Club for Growth and WMC.
The bottom line is that if Wisconsin had had an appointment system since the 1970s, it’s likely only Justices Abrahamson, Crooks and Prosser would still be there. Abrahamson and Crooks are highly regarded jurists. Abrahamson is a liberal and Crooks a swing vote. Louis Butler would also likely still be on the court instead of Gableman, while Roggensack’s and Ziegler’s seats probably would be occupied by more moderate justices.
And none of them would have been beholden to special-interest money of any taint.
It’s true that appointment probably would have delivered a more moderate or even liberal court, but it surely would also have produced a more thoughtful and qualified one.
