Current Wisconsin Court Race Screams Out For Merit Selection, Now More Than Ever

The only way to watch local news in Wisconsin is with a DVR recording of the broadcast and the remote in hand to forward past the relentless ads for the upcoming April Spring Election where a very heated Supreme Court race awaits voters. The ad buys and the money raised to air them made for a story in The New York Times. Judicial seats on our highest court have been made into sharp-edged campaign races that lower the role of a sitting justice to a mere pol who makes pledges and does everything just shy of placing an R or D for party affiliation on their campaign material.  That should trouble everyone, party aside. The second and third paragraphs of the news article alert us to the glaring problem.

The conservative candidate, Daniel Kelly, is trailing in limited private polling of the race. Abortion rights, which powered Democrats in the midterm elections, are driving the party to shovel enormous sums of money into the campaign. And perhaps most significantly, Justice Kelly’s campaign has been outspent by a staggering margin on television since the Feb. 21 primary: $9.1 million to nothing.

But Justice Kelly, who sat on the court before losing re-election in 2020, appears unfazed. He told supporters on Sunday in northwest Wisconsin that help was on the way from unidentified outside groups in his race against Janet Protasiewicz, a liberal Milwaukee County judge opposing him in the April 4 election.

Let me state up front that my disdain for the current method of electing court justices runs as much against the liberal candidate as it does the conservative one.  This is not an attack on anyone’s judicial philosophy, but instead a deep concern with the process itself. This is not the first race for the court that has drawn the ire of good government types who bemoan the slippage that has occurred with how we place new members on the high bench. This is not the first time Caffeinated Politics has opined about the need to do better, much better when it comes to how seats on the Supreme should be filled.  I noted that in 2011 the Wisconsin State Journal, a constant voice for merit selection in filling court vacancies editorialized about the issue.

Wisconsin’s high court should absolutely have an honest and open debate over the bipartisan push in the Legislature to end state Supreme Court elections. These ugly judicial elections, driven by shadowy special interest groups with lots at stake in future court decisions, are a huge contributor to our high court’s embarrassing dysfunction.

It was bad enough that the quality and experience of court candidates has been slipping over the last decade as judicial campaigns have become more vicious and money-soaked. It was bad enough that public distrust in court decisions has fallen just as partisan squabbles and 4-3 votes have increased.

At a time when public approval of our governmental and public institutions is shrinking, there should be ideas advanced that would reverse that sad downward trend. Merit selection is one idea that should be considered to make our Supreme Court better, and to assure the citizenry that qualified jurists are at work. No longer can voters just assume that justice will be handled in the manner we were taught in our civics classes.  There is more money and more chicanery in the system now than ever, and corrective measures must be undertaken to correct the problem.

There are different ways that merit selection can work. But the process could start with a nonpartisan group that would recommend names for the court. Then either the governor or legislature might make the selection. After a set number of years, the voters could then vote yes or no on retaining that person for another term. What appeals to me so very much is the idea that the first step in the process would ensure that only highly qualified and thoughtful names in the legal community would be advanced. The ones with low ethical standards that do not mesh with our ideals or those without intelligence that reflects our needs would be weeded out. As would the ones who might simply opt instead for being elected to an openly partisan office.

With merit selection, there would be no more stories of wealthy names dumping money into court races for this or that candidate, or cases potentially being corrupted down the line due to campaign donations. If you find yourself turning aside from the onslaught of advertising on TV for a court seat, you too should be considering merit selection for vacancies on the court.

3 thoughts on “Current Wisconsin Court Race Screams Out For Merit Selection, Now More Than Ever

  1. Solly

    Dan Kelly WAS a “merit” selection by that great judge of character, Scott D. Wanker. He was replaced by I’m sure you would agree, a better justice. Otherwise he’d still be on the court voting against fair maps, common sense public health measures and rights for individuals to pursue happiness. So, bottom line, merit selection = Dan Kelly, Becky “gays are disgusting” Bradley, David “I’ve got you by the throat” Prosser. Elections = the voice of the governed and Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky. Um, what’s your point again? By the way, Trump used “merit selection” by a group calling itself non-partisan and it got us an ayatollah from Texas ready to abolish abortion by medication nation-wide. You have to factor in the Trumps and the Wankers of the world in who will be making the appointments, because they inevitably get the chance and do it. It’s on the voters to be mature and see through the crap, if they had, the court would be looking at a 5-2 progressive majority after April.

  2. Atty. Nick Zales

    “Merit selection” merely moves candidates from the public to back rooms where big-shots make deals. What “non-partisan” group is qualified to choose candidates? None I know of. WILL? The ACLU? This just moves all the “problems” you mentioned from the light of day to a dark room reeking of bourbon and cigar smoke.

    Sixty percent of all Wisconsin lawyers are solos. They will be 100% shut out of this process. We already have selection panels for judges created by the governor and our US Senators. Who do they choose? People who are well connected to money or power brokers. Not the best candidates. It’s old wine in new bottles. No thanks. Don’t like our elections? Don’t vote. I will be.

    1. Thanks for your views. While I hear what you say I wish to convey the way it works in a number of states where a nonpartisan commission of lawyers and non-lawyers recruits and evaluates candidates for judgeships. I do not come to this matter lightly, but after decades of watching our judicial branch lose respect among the citizenry, a fact that concerns me. The last I looked at the whole nation there were 14 states who used a form of this selection for judges. For years I was following former Justice O’Connor who was aligned with this thinking–that gives a sense of how long this topic interested me. In AZ, as an example to put this process in play, and to show that you might have some trust in how this occurs, they have designed a commission composed of 10 public members and five attorney members, with the commission then chaired by the chief justice of the AZ Supreme Court. After two years of judicial service, those judges nominated by the commission and appointed by the governor are evaluated by the voters in a retention election. I suspect you and I agree that the campaign style free-for-all that now reduces a court nominee to a partisan player denies the court the higher regard that it must have from the citizenry so as to retain its role and power to settle for constitutional matters and points of law. Thanks for your time pondering this issue. I have included a link here with further models of the 14 states who use merit selection.

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