Freepik
A man wearing a pin on his shirt that says "appoint."
It’s time to admit that electing our Supreme Court doesn’t work. Let’s go to an appointed court.
By Election Day I didn’t want to vote for either candidate. Both campaigns and their allied groups spent $100 million on ads distorting the records of the other side. Both camps made it seem as if the other candidate would free serial killers and order them to take up residence in our attics, when the court very rarely decides criminal cases at all.
I voted for Susan Crawford because she is ideologically closer to my views than Brad Schimel. But it was like voting for governor or a legislative candidate. The court should be different.
The Supreme Court has really never leant itself to elections. I wanted to vote for a candidate who had a distinguished legal background and no record of partisanship. I didn’t want to vote for someone who I knew would vote my way on the issues. I wanted to elect someone who was so above partisanship and so fair-minded that I couldn’t tell how they might vote. But that means that in a campaign, the most principled candidates can say virtually nothing of interest. A good Supreme Court race would have no issues because commenting on them should be out of bounds. The whole concept of an unbiased court just doesn’t mesh with an election process.
Moreover, no matter which candidate won, there were going to be questions about his or her impartiality. Schimel was the Republican Attorney General from 2015 to 2019. He was famously (and disastrously for him) supported by Elon Musk, with about $20 million of Musk’s money and a veiled attempt to buy votes outright. Musk has a case about a state law prohibiting him from owning Tesla dealerships in Wisconsin winding its way through the courts. Schimel wouldn’t say that he would recuse himself if that question got to the court.
For her part, Crawford was chief legal counsel to Democratic Gov. Jim Doyle. She was supported by unions and, as a lawyer, tried a case that sought to overturn Act 10. It’s inconceivable that she won’t rule to do just that when she gets the chance and voters will be right to wonder if she hadn’t prejudged the case.
All of which is to say that these heavily partisan “non-partisan” elections have all but destroyed the credibility of the court. The liberal justices didn’t help by showing up onstage at Crawford’s victory party to pump their fists in victory. So much for the dignity of the court or the idea that each justice would judge a case on the merits and not just vote with their caucus.
Just as bad, all that money and attention obliterated everything else that was on the spring ballot. The Superintendent race got little attention and it simply became a partisan add-on. Crawford voters voted for Democrat-backed incumbent Jill Underly while Schimel voters supported her challenger, Brittany Kinser. There were only about 10,000 crossover voters who supported Crawford and Kinser. I was one of those.
But there was no serious discussion of the important issues in education: state funding and the increasing reliance on referendums, poor test scores and Underly’s change to how those scores are reported, the proper role of vouchers and charter schools, the racial achievement gap which is the widest in the nation, how to deal with a teacher shortage, and more. The public got cheated out of a robust debate on the future of education in our state.
Beyond that, spring elections used to be a chance to focus on local offices. We had a race for Dane County executive, but that got virtually no attention at all. There was a race between two interesting candidates for an open seat on the Madison School Board. That also got little attention. And all 20 Madison city council seats were up for grabs as well as local elections for mayors, councils and village boards all over the state, again mostly lost in the dark shadows created by the court contest.
Nothing can be done to fix a system that is now completely broken. Madison’s state Senator Kelda Roys says she’ll introduce a couple of bills to try to repair it, but they stand little chance of passage in the Republican-controlled Legislature and they probably wouldn’t be very effective even if they were enacted.
One of her bills would provide public funding for candidates. But with all that private money in play, it’s hard to imagine any candidate taking what will be a paltry sum in exchange for spending limits while his or her opponent turns down the public money and spends like crazy.
Her other bill would subject third parties to the same contribution limits and reporting requirements that now apply only to candidates. Of course that should happen, but it probably would run afoul of the U.S. Supreme Court’s infamous Citizens United decision, which equated money with speech. Dark money is likely to stay dark.
Roys deserves credit for trying, but I think she’s tinkering with a system that is completely and irreparably busted. Instead, we need to jettison elections for the high court altogether and join about half the other states in appointing justices.
There’s any number of ways to do that, but a system I like would have the State Bar Association provide a list of candidates to the governor. The criteria would include a distinguished legal background and a history of fairness. Previous partisan activity would be all but disqualifying. Since most candidates are likely to be judges and since judges develop reputations among lawyers, I’d trust the Bar to come up with a good list.
Then the governor’s nominee would have to be approved by the state Senate. Now, of course, those confirmations have become bloody affairs in themselves at the national level. It might not be pretty, but it will be better than the months of lowbrow character assassination that we have now. And, especially when we have split control of the governor’s office and the Senate, as we do now, the only candidates who would get through would have to be nonpartisan.
Pretty much everyone is expressing frustration with the current, money-soaked system, but what are the chances for reform? Slim. And paradoxically, it’s more likely to be Democrats who would stand in the way. That’s because, for all of the complaints from left-leaning good government groups, the current system is working pretty well for liberals and Democrats. Their candidates have won four of the last five Supreme Court races, the last two by overwhelming margins. And, in fact, many more Democrats than Republicans have been winning statewide races for any office in recent years.
So, ironically, the best chance for reform probably will come from Republicans, and not because of any idealistic motivation but because they see the current election system as benefiting Democrats.
If I were Robin Vos I’d push this reform through the Legislature right now. Because it would require a constitutional amendment, it needs approval in two consecutive Legislatures and the public in a referendum. The governor is not involved. If the Republicans should lose control of either house of the Legislature next year, that would put Democrats in an awkward position. Good government groups would probably push for the appointment system while Democratic interest groups, like unions, would likely want to keep elections simply because they’ve been winning them in recent years.
I don’t know how that would end up, but I’m reasonably confident that if the question made its way to voters they’d vote to end the madness of the current system.
What’s certain is that there isn’t enough time to change anything before next April when a seat held by conservative Justice Rebecca Grassl Bradley will be up. She just announced that she’s running again. You can expect to learn that, if reelected, she’ll assign a serial killer to live in your attic.
Dave Cieslewicz is a Madison- and Upper Peninsula-based writer who served as mayor of Madison from 2003 to 2011. You can read more of his work at Yellow Stripes & Dead Armadillos.
