The citizens of the Badger State have the privilege to directly elect the justices on the state Supreme Court. It is our democratic duty to judge the judges who will have the last word on every legal question in the state, from death penalty appeals to the definition of man and wife. The Supreme Court is the fulfillment of our understanding of jurisprudence and it is the last refuge of Aristotle's belief that \the law is reason free from passion.""
However, the process by which our seven judges are selected is another matter. The dispassionate logic of the courthouse is traded for all the trappings of a modern political campaign. Currently, our justices are elected to 10-year terms, in what are officially described as ""non-partisan"" elections. Of course, these ""non-partisan"" elections have devolved into the typical campaigns that the public has come to know and abhor. It is no secret or surprise that candidates operate with the blessings and the direct aid of the political powers-that-be.
Indeed, many of the members of the Supreme Court are former professional politicos-four of our seven state Supreme Court justices have direct campaign ties to the Republican Party and two are former state Republican legislators.
The overt connection between our Supreme Court bench and state political powers is a product of the way in which our justices are chosen. Because the average campaign costs $656,202, it is utterly impossible for a candidate to run a viable statewide campaign without the financial support of the political parties. The election process forces a candidate to choose sides, and it encourages candidates to choose them early. This creates a reality where candidates' connections to the political establishment are just as important as their qualifications as candidates. It's no wonder that 75 percent of the eligible electorate decides to sit the elections out.
Following in the path of their legislative brethren, judicial candidates also receive contributions from those who have a lot at stake in regards to the making of the law. In the cases heard before the Supreme Court, 75 percent of those cases involved a party, law firm, business or other organization that had previously made a contribution to a Supreme Court justice.
Furthermore, every elected justice has received money from an attorney who later argued a case in front of the Supreme Court. While no cases of judicial corruption or decision-buying have ever been alleged or proven, there will always be a potential conflict of interest that will accompany every decision rendered by elected justices. Since our highest judiciary members are dependent upon private benefactors for their security on the bench, the possibility of corruption will remain indefinitely.
Proponents of judicial elections argue elections make the public more aware of who is on the bench. Well, that being said, name one justice on the Wisconsin Supreme Court. Can you do it? How about all seven? The fact is that only a quarter of those who voted for a Supreme Court candidate can identify the name of the justice they voted for five years later. Despite the expensive campaigns, the Supreme Court operates in relative anonymity, with the general public aware only of their most controversial decisions.
It is also argued that elections are a way for the public to hold their officials accountable, and to curb the actions of so called ""activist judges."" In other words, elections ensure that jurisprudence remains in step with public opinion-otherwise the justices will find themselves voted off the bench. But this creates a system where the best interests of the justices are served by placing a premium on what is popular rather than what is right.
Throughout our history we have relied upon an independent judiciary to act as an agent of social change, even if such change is not wanted by the public. Would the Supreme Court justices in 1954 have had the courage to rule against general public opinion and decree that separate was not equal, if they had to run for re-election?
Public opinion should always serve as a basis of the law, but it should not handicap the judiciary's ability to interpret it. Elections limit the extent to which the judiciary can remain independent because they give political interests direct access to the court. By blurring the lines between party politics and law elections endanger the public more than they empower it. In order to preserve the ideal of judicial independence and to ensure that the logic of law is not irrevocably tainted by party politics, the public should begin courting alternatives to judicial elections.
opinion@dailycardinal.com.
