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Merit Selection For Supreme Court Gets Editorial Backing

December 16, 2020

I was most pleased to see merit selection for the justices on the state supreme court received solid support in an important newspaper in our state. This is a foundation topic at Caffeinated Politics, as it would greatly aid in the strengthening of our democracy.

The Beloit Daily News wrote an editorial regarding Wisconsin Supreme Court Justice Brian Hagedorn who was the sole conservative on the bench to demonstrate fealty to our Constitution and election process following the November balloting. As such he is receiving much news coverage for his strongly held views.

What stands out so wonderfully from the editorial, apart from the accurate summation of how Hagedorn has upheld the law, is the newspaper’s clear writing about the need for merit selection.

We have been among those disillusioned by the outright politicization of the state Supreme Court over the last several election cycles. Despite the theoretical nonpartisan nature of judicial elections, anyone paying attention easily can determine which candidate represents the Democrat side and which the Republican side. Big dollars flow, with the purpose of trying to elect a reliable left- or right-wing court. By all appearances, the strategy has been working.

But when high stakes partisan cases arrive at the court, the split has been evident. Expectations have been evident, too, with harsh reactions from the right when Hagedorn dared to break ranks and follow what he believes the law requires.

Justice Hagedorn deserves praise, not condemnation, for demonstrating that rarest of qualities in this hyper-partisan era—judicial independence. He’s still a conservative jurist, and we’re OK with that. What he’s proving, though, is that he’s not necessarily a partisan jurist, and all of Wisconsin should be pleased with that.

Unfortunately, Justice Hagedorn also is an aberration as a swing vote. He is flanked on the left and right by three reliable partisans when a case involves political matters.

The court is still broken.

In the past, we have advocated for abandoning elections in favor of a merit appointment system to fill vacancies on the Wisconsin Supreme Court. Such a system would not remove governors and legislators from the process. Rather, it would add a layer with the sole intent of finding candidates for appointment who are loyal to the law, not a political movement or party. Nearly half the states use some form of merit commission for nominations, not only for Supreme Court positions but often for appellate and trial courts. Commissions are charged with creating a list of potential nominees, considered solely on their merits and independence, then submitting the list to the governor for nomination, and the legislature for confirmation.

This topic is one of the issues where my thinking has evolved to the largest degree over time. Thirty years ago I was a strong supporter of the election process which allowed state citizens a direct voice in electing judges.  I admit there seems something very ‘American’ about the process.  I know there is still a very strong public desire for such elections, as people think that this balloting allows them to make for a better court system. 

But what is happening to the role of justice in Wisconsin with the blending of very costly campaigns that blur into political races should concern all of us.  The end result is not a better court system, but instead a fractured and deteriorated one. 

As such I sincerely say thanks for the Beloit Daily News editorial about this needed change.

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