Let's judge on merit

Milwaukee Journal Sentinel                             February 14, 2008
If referees faced public elections and raised campaign funds, how much would it take for the Green Bay Packers to win the Super Bowl?

Almost as inevitable as the eternal hope that next year the Packers will win - but far less riveting -is a court date over a divorce, child custody or a speeding ticket. When that day comes, do you want an elected judge to interpret the law fairly or side with the preference of campaign contributors? You're no speeder; you're a criminal! Forty years of hard labor. Court adjourned.

The agendas of business lobbyists, unions and interest groups are no secret, and they have been doling out big bucks for their candidates in Wisconsin's Supreme Court elections.

Last year, a record was set for a judicial election when $5.8 million was spent in the nasty Annette Ziegler-Linda Clifford battle. The candidates spent $2.71 million, and others spent an additional $3.1 million. Can a Supreme Court hopeful win without deep-pocketed friends?

In Wisconsin, we elect 264 state judges and another 252 municipal judges. On April 1, there will be 11 judgeships on the ballot in Milwaukee County. The current face-off between Louis Butler and Mike Gableman for a Supreme Court seat is shaping up to be another barn-burner.

The framers of the U.S. Constitution believed that an independent judiciary was vital to the republic. Their means to accomplish that independence was presidential appointment with Senate confirmation. States broke with tradition and started electing judges in 1829. Today, 32 states have some form of election.

These are attracting a rising flood of money and mudslinging. Retired U.S. Supreme Court Justice Sandra Day O'Connor, a Reagan appointee, wrote in a Wall Street Journal op-ed: "As interest-group spending rises, public confidence in the judiciary declines. Nine out of 10 Pennsylvanians regard judicial fund raising as evidence that justice is for sale, and many judges agree."

She advocates merit selection of judges as a solution. Under merit selection, an independent commission nominates three judicial candidates and the governor must pick one. The commission members are drawn from the legal community - senior justices, attorney general appointees, senior court appointees, state bar members, law school faculty - for their ability to select the state's best legal minds. Judges would be reappointed for a new term by the same process.

No system is perfect, but merit selection would move the judiciary off the dangerous shoal that is tearing at its battered hull. Currently, 17 states use some form of merit selection, and interest is growing. Minnesota's Quie Commission recommended a change last year, and a merit selection bill will be tabled soon.

The flip side of judicial election is that it turns off high-quality lawyers the bench needs. They recoil at the income lost during campaigning and the personal money that needs to be spent. Ziegler, the winner, contributed $840,000 to her campaign while Clifford contributed $517,000, according to Wisconsin Democracy Campaign. The job pays $137,414 a year. The moral: Don't take financial advice from a judge wannabe.

Are voters really up to the responsibility? "Studies show that most people don't know what they are doing when they go into the voting booth," Matthew J. Streb, editor of the book "Running for Judge," told me. "When they leave the voting booth, they can't recall who they voted for."

When judges are elected, they will have constituents and will act like politicians. This is dependence when we need independence. We don't want the best judiciary money can buy but the one we can't buy.








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