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Tuesday, March 13, 2007 

A Question from the Back of the Room

In a comment in this post, Nick asked me the following questions...
Unrelated question that I want you to answer: why is Wisconsin supreme court popularly elected? Would it be advantageous to give them long terms and maybe make their appointments similar to the way in which the US justices are appointed?

What are their term lengths, anyways?

I spend the bulk of my time on my often-neglected blog (I apologize, but I've been busy with school, FedSoc, and finding a friggin' job) talking about federal judges. As you civics fans may know, federal judges that sit on District Courts, Courts of Appeal, or the Supreme Court are appointed by the president, confirmed by the Senate, and sit for life terms during good behavior. This only applies to these judges, known as Article III judges. It does not apply to Tax Court judges (they have 15 year terms) or administrative law judges or other federal judge-ish positions. One may ask why we elect judges in this state instead of following suit with the feds. There are historical and policy reasons why Wisconsin chose to handle the judiciary this way.

I'm going to quote heavily from this paper, A Call for Change: Improving Judicial Selection Methods, by MULS Professor Jason Czarnezki. Here is some of the background on judges in this state...
An elected judiciary is certainly consistent with Wisconsin's Jacksonian tradition of promoting public participation in government. Wisconsin Supreme Court Justices are elected to ten-year terms in statewide, non-partisan, April elections, and vacancies are filled by gubernatorial appointment with the appointee expected to stand for election to a full ten-year term the following spring (unless another supreme court seat will be contested). Judges on the courts of appeals and the circuit courts are also elected to shorter six-year terms of service.
Prof. Czarnezki elaborates on the Jacksonian influence on the election policy...
The constitutional drafters of Wisconsin felt such elections would not hamper judicial independence because judges would be elected by diverse citizens from large geographic areas with little political stake in the results. This is a key point. These drafters did not want an appointment system because they worried that, unlike citizens (who presumably would pick the most qualified jurists), the governor or
legislature would be biased in making appointments leading to a judiciary with a lack of independence. In addition, gubernatorial or legislative appointment was inconsistent with the Jacksonian ideal of popular sovereignty, and, thus, Wisconsin became the second state to require that all judges be elected by the people.
The federal system is often criticized as having an element of cronyism to it. Senators usually have a lot of say in who is nominated to the District Court in their state. Presidents have been criticized for appointing "their people" to the appeals court bench and beyond (cough cough Justice Fortas cough). The Jacksonian response is to put the judiciary in the hands of the people.

Prof. Czarnezki is not sold on the benefits of the election process. He has concerns about the consistency of decisions by elected judges. Also, judges in this state get re-elected so easily that any benefits of the election are minimal. Really, how many people get fired up over a circuit court race? Hell, how many people are fired up about the Supreme Court race? I don't think that many people could name a single Justice on the Wisconsin Supreme Court.

I think that the federal system and our state system have positive and negative aspects. The state system does suffer when the public isn't engaged in the electoral process. However, the election gives people a chance to draw fine lines within the government on policy issues. What do I mean by this horribly worded phrase that I can't seem to articulate in an understandable way no matter how many times I try to rewrite it? Here's the example that jumped out at me as I was thinking about this...

Let's say that you are one of the people who voted for Jim Doyle in the last election and voted for the Marriage Amendment. To me, that says "I like Doyle as governor generally but I disagree with his position on the Marriage Amendment." Fair assessment? Under our current system, if that voter wants, he/she can choose to vote against Linda Clifford in the Supreme Court election. She has been fairly clear about her views on gay marriage and the Equal Protection Clause, so someone who supported the Marriage Amendment might be uncomfortable with her on the court. If we followed the federal system, Doyle would be able to just appoint Clifford and bypass "the will of the people" on that one. Maybe you think that's a good thing, maybe you think that's a bad thing. It certainly is a possibility though.

Basically, the federal system is all or nothing. You are electing the chief executive and he/she will make the call on these issues. That can be troubling to some people who may agree with the policy positions of the executive but not the judicial philosophy of the executive, or vice versa. The state system gives voters the chance to make distinctions. Maybe the voters don't take advantage of that opportunity as much as they should. Does that mean we should scrap the system? I don't know. You, the voter, can do us all a favor and just get a little knowledgeable about who your state judges are. There are never that many of them up for election at one time. Learn a little about them and (if they aren't running unopposed, though they often are) vote for the best candidate. It's your right.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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