Last week, the Wisconsin legislature's Joint Finance Committee passed legislation setting up a new public financing structure for Supreme Court candidates. This public financing would provide campaign funding for viable Supreme Court candidates who agree to forgo private financing, totaling $100,000 for primary elections and $300,000 for general elections. Clearly lawmakers were reacting to last year's campaign between Justice Michael Gableman and former Justice Louis Butler Jr., which was widely considered to be one of the nastiest statewide campaigns in recent memory.
We are glad the Legislature is trying to rectify the problems of Supreme Court elections. However, we are less enthused about the complete futility of its attempt.
Limiting the excessive amount spent on Supreme Court races is a noble pursuit, but it serves no purpose when most of the money is not even spent by the candidates. In last year's election, third-party groups spent $4.8 million on behalf of Gableman. This amount goes above and beyond anything public financing can offer, and because this money is spent by third parties with no official connection to the candidates, they offer a mammoth-sized loophole to anybody who would take public financing but still wants to spend money like George Steinbrenner in the MLB offseason.
But the Legislature can't just go and limit the spending of Swift Boat-style third parties because of those First Amendment rights we are all guaranteed. Because of this, there is only one meaningful reform that can be made to Supreme Court elections, and that is to ban them entirely.
Electing Supreme Court justices binds them to the whims and desires of the electorate, which is simply not what the court system is supposed to follow. Justices should not be bound to the will of the people, they should be bound to the law.
An appointment system works perfectly fine for the U.S. Supreme Court, which regularly enjoys much higher approval ratings as a whole than Congress or the president. There, jurors do not have to put up with the constant influences presented upon them during the course of an election. In addition, the people still have a voice in the process, as justices would presumably be appointed by an elected governor and confirmed by an elected Legislature. In addition, elections force candidates to play too much of their judicial hand, threatening their objectivity on cases. It may be frustrating to watch the confirmation hearings and see nominees dodge questions on everything from abortion to affirmative action to Perry Mason. But for the sake of preserving objectivity, it is best that justices, both current and prospective, simply keep their traps shut.
Wisconsin does not necessarily need a system of lifetime appointments to the state's highest court. Term limits may be necessary to keep fresh ideas in the judicial sphere, but those details can be worked out in the future. What is important now is making sure the state Supreme Court can effectively do its job, and as of now, the election process is their biggest roadblock.