Eminent Domain

Owen at Boots & Sabers links to this Sheboygan Press article about the two Wisconsin Supreme Court candidates. The paper interviewed the candidates separately about the race. The most enlightening part of the article discussed judicial philosophy...

The two candidates have differing opinions on how they'll serve on the bench.

Ziegler calls her role as a judge "traditional," saying there are three branches of government for a reason.

"I think the judiciary's job is to apply the letter of the law, legal precedent, sound conclusions based upon the facts of each individual case based on those things," Ziegler said. "Not the whim of the day or not my political or ideological preference. That gets checked at the door."

Clifford said she would not be a "strict constructionist" when it comes to applying the law.

"I am willing to let the (state) constitution breathe and reflect what society needs in any given context," she said.

Personally, I don't want Linda Clifford making the call on "what society needs." If she's into that kind of policy making, she should run for the legislature. I would rather have judges follow the philosophy that Judge Ziegler endorses. That philosophy recognizes the proper role of the judiciary and respects the concept of separation of powers.

Thinking about this election and our state's highest court reminds me of Judge Sykes' Hallows Lecture about WISC's 2004-2005 term. This was the term when the court did the following (to quote Judge Sykes)...

- rewrote the rational basis test for evaluating challenges to state
statutes under the Wisconsin Constitution, striking down the statutory
limit on noneconomic damages in medical malpractice cases;

- eliminated the individual causation requirement for tort liability in
lawsuits against manufacturers of lead-paint pigment, expanding "risk
contribution" theory, a form of collective industry liability;

- expanded the scope of the exclusionary rule under the state
constitution to require suppression of physical evidence obtained as a
result of law enforcement's failure to administer Miranda warnings;

- declared a common police identification procedure inherently
suggestive and the resulting identification evidence generally
inadmissible in criminal prosecutions under the state constitution’s
due process clause; and

- invoked the court's supervisory authority over the state court system
to impose a new rule on law enforcement that all juvenile custodial
interrogations be electronically recorded.

Judge Sykes continues...

Together, these five cases mark a dramatic shift in the court's jurisprudence,
departing from some familiar and long-accepted principles that normally
operate as constraints on the court's use of its power: the presumption that
statutes are constitutional, judicial deference to legislative policy choices,
respect for precedent and authoritative sources of legal interpretation, and
the prudential institutional caution that counsels against imposing broadbrush
judicial solutions to difficult social problems.

When voting in this race, ask yourself: do I want this kind of judging to continue? Do you want the courts making important policy decisions that should be left to the legislature? I don't. I'm voting for Judge Ziegler.