The following editorial was originally published in the Wisconsin State Journal on May 23, 2009.
Impartial justice? More doubts about the Wisconsin Supreme Court
The recent attempt by a lawyer to remove Supreme Court Justice Michael Gableman from a case is a foreboding indicator of a grave problem:
Wisconsin's system of electing justices is putting at risk our trust in fair, impartial justice from our highest state court.
The best solution is a reform called merit selection.
The request that Gableman remove himself from a case concerns a pledge he made during his 2008 campaign for a seat on the Supreme Court. Gableman said he would not "look for loopholes to put criminals back on our streets."
Lawyer Robert Henak claims the statement shows bias or the appearance of bias against Henak's client, appealing a conviction by claiming ineffective counsel at his trial.
Whether Henak's request has substance -- or is nothing more than a lawyer trying every possible argument for his client -- will be up to Gableman, and potentially the other justices, to determine.
However, the request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin's have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises. "Obviously, (Henak's) motion points out the problem as the race has become more issue-oriented," former Supreme Court Justice Janine Geske told the Milwaukee Journal-Sentinel.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.
The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?
Concern is so widespread that the state Supreme Court justices will conduct hearings this fall on whether judges must remove themselves from cases involving campaign contributors. In addition, the U.S. Supreme Court is soon to decide a West Virginia case about a state supreme court justice who remained on a case involving a campaign supporter.
Moreover, as if the current situation weren't questionable enough, "You ain't seen nothin' yet."
Wisconsin law has previously tried to restrain how far judicial candidates can go in making issue-oriented campaign promises. But that restraint is headed to the scrap heap. Court rulings in Wisconsin and elsewhere are paving the way toward full-blown partisan judicial elections.
At the crux of the problem is the threat to the checks and balances so fundamental to American government. Our lawmakers and governors are supposed to be partial to agendas that reflect the will of the majority. That's why we elect them by majority vote.
In contrast, the judicial branch -- especially supreme courts -- serves as an important check on the majority's power to trample on minority rights guaranteed by law.
When justices are elected after big-money campaigns in which partisan sides back candidates partial to their politics, the system of checks and balances is jeopardized.
And so is our trust in the court's fairness.
Reform is required. Merit selection is the right choice.
What’s merit selection?
The State Journal editorial board supports merit selection as an alternative to Wisconsin’s Supreme Court elections, which have become increasingly influenced by partisan politics and misleading ads sponsored by outside interests.
The best merit selection systems employ a diverse, nonpartisan committee appointed by a variety of sources.
The committee recruits candidates and, in a public process, evaluates each according to character, competency, experience and related qualifications.
The committee then submits a list of finalists to the governor or another authority, who makes the selection from the list.
Justices are held accountable for their performance through periodic reviews by the committee or by voters who decide whether to retain a justice in a yes-or-no, uncontested election at the end of a term.
Twenty-four states and the District of Columbia already appoint their highest courts through merit selection. Merit reform is under discussion in Texas and Pennsylvania. In neighboring Minnesota merit selection legislation won committee approval this year before stalling as lawmakers dealt with a budget crisis.
For a fuller explanation of a good merit selection system, see the description of Arizona’s process