Sept.18, 2009 – Mixing history lessons with political observation, Wisconsin Supreme Court Chief Justice Shirley Abrahamson affirmed her belief in judicial elections at the close of a conference held to debate their merits Sept. 17.

The Portage County Bar Association, Justiceworks, and the University of Wisconsin - Stevens Point Continuing Education organized the conference, entitled Judicial Elections: Navigating the Collision Course, in Stevens Point. Lawyers, media representatives, public interest activists, and others debated the harm to an independent and fair judiciary posed by a perceived increase in negative campaigning and exploding spending in judicial elections. The trend could be exacerbated by recent court interpretations of the First Amendment permitting judicial candidates to openly declare their partisanship.

Some, such as the Wisconsin State Journal Editorial Page Editor Scott Milfred, argued for a “merit selection” process by which the governor chooses from a slate of candidates nominated by a nonpartisan board. Justices are held accountable with periodic reviews by the committee or by voters, who decide to retain a justice in a yes-or-no, uncontested election at the end of a term.

But Abrahamson, appointed to the supreme court in 1976 and then elected in 1979, 1989, 1999, and 2009, disputed the notion that a gubernatorial appointment process is inherently better than elections.

Origin of Wisconsin judicial elections

Framers of the Wisconsin Constitution chose a system of elected judges only after debating many of the same issues raised today, Abrahamson said.

“One of the basic problems about the elective system in 1846-48 was, ‘Would the judge bend the decisions to win an election?’”Abrahamson said. “You can ask the same question about appointment. Will a judge bend a decision favoring the appointing entity? Now, the judge may not stand for election in the appointive system, but the judge who is on the trial court wants to be on the court of appeals.”

Ultimately, Abrahamson said, the constitution convention opted for an elective system because in the mid-19^th century, appointive systems in other states had become sources of patronage so that judges were named on the basis of partisan loyalty, not ability. “In the Populist Era of the 1840s and 1850s, to correct a defect as a reform movement, our constitution convention decided to elect judges,” she said.

But, Abrahamson added, that “every reform has always to be looked at to see if it has run into problems and whether it has to be reformed.”

Challenge of greater speech rights

Abrahamson identified the issue of expanded campaign speech as a challenge to the maintenance of a fair and independent judiciary through elections.

In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the U. S. Supreme Court held that the First Amendment forbids a canon of judicial conduct preventing judicial candidates from announcing their views on disputed legal or political issues.

Following White, Seifert v. Alexander, 597 F. Supp. 2d 860, invalidated provisions of the Wisconsin Code of Judicial Conduct that prohibited party membership of a judge or judicial candidate, a judge or judicial candidate’s public endorsement of a political party candidate or platform, and a judge or judicial candidate’s personal solicitation or acceptance of campaign contributions.

But Abrahamson said that while judicial candidates can engage in more partisan speech and fundraising, each will have to decide for him or herself how far to go when the public expects a fair judiciary. “You all have First Amendment free speech rights, but you don’t just say everything that comes into your head,” she commented.

Abrahamson also cited the efforts of those such as the State Bar of Wisconsin’s Judicial Campaign Integrity Committee to check the facts of ads and other campaign speech.

Abrahamson acknowledged the role that money can play in judicial campaigns. She noted her personal support for public financing of judicial campaigns.

Recusal

Conference participants discussed the feasibility of recusal as a means to protect the judiciary’s perceived and substantive fairness. Reference was made to Caperton v. Massey, 129 S.Ct. 2252 (2009), in which the U.S. Supreme Court held that due process requires a judge to recuse himself from hearing the case of a $3 million campaign donor.

Abrahamson observed that Justice Anthony Kennedy left it up to Congress and the states to set recusal standards. She noted that Wisconsin already has a statute and language in its Code of Judicial Conduct regarding recusal.

But Abrahamson said the problem remains “difficult” as the Wisconsin Supreme Court is set to consider the matter this fall with petitions filed by the League of Women Voters and the Wisconsin Realtors Association. Whereas the League of Women Voters urge that a contribution of $1,000 or more within the preceding two years should be a basis for recusal, the Realtors argue that a lawful campaign contribution should not, by itself, disqualify a judge.

In any event, Abrahamson pointed out that recusal issues are not solved by abandoning the election of judges because appointed judges can also find themselves in disqualifying circumstances.

Voter participation

Abrahamson commented on the relatively low voter turnout for judicial elections.

Some have suggested merging the judicial elections with the partisan fall elections, but Abrahamson said that this might not necessarily improve participation. She remarked that most states that have tried this find that the voters still cast fewer ballots in the judicial races than in the contests higher on the November ballot.

Abrahamson said there were other means to improve voter turnout, including voting by mail and weekend voting.

Mutually beneficial system

Elections mutually benefit judges and the public, Abrahamson argued. “Elected judges are more apt to go and speak with the people about the judicial system and listen to their concerns,” she said.

“I think elected judges are more apt to ride with law enforcement. You learn what the streets look like from a squad car. It looks different than when you are walking on the street or riding in your own car,” Abrahamson said. “You learn about the issues and the problems. You might not decide the case any differently because you are going to look at the facts and the law. But it is a good educational experience for judges.”