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Jun 04 2012

Justice for Sale

Published by under Merit Selection

The summer 2012 cover story of The American Scholar explores the influence of big money on judicial elections and the corrosive effect that it has on the public’s confidence in courts. The story looks at a case study on political spending and judicial elections in Wisconsin and also explores the ramifications of the U.S. Supreme Court’s 2010 Citizens United decision.

In Wisconsin, the 2008 state Supreme Court race was tainted by contributions from big business. The two candidates spent $1.2 million combined. Special interests contributed $3.4 million. Much of the special interest money was spent on attack ads that helped to sway the electorate. As a result, the incumbent justice, Louis Butler, was ousted from his seat on the bench and the political slant of the court shifted from liberal to conservative. In the past five years, special interests in Wisconsin have spent $14.8 million on judicial campaign TV ads. This figure is second only to the level of special interest spending in Pennsylvania. The 2008 election was so fraught with intrigue that Butler compared it to the John Grisham novel, The Appeal, a legal thriller in which a chemical company manipulates a judicial campaign to replace a liberal justice in order to pack the court with conservatives who will overturn a $41 million verdict against the company.

One detail from the Wisconsin election that seems like it could have been pulled from a novel: the winning candidate, Michael Gableman, received two years of free legal counsel when, for the second time, he appealed misconduct charges levied by Wisconsin’s judicial commission. In his defense, the candidate claimed that his counsel was not free. He said that the firm represented him on a contingency basis, and he would pay the firm if he won his case and the state paid the bill. “The arrangement distilled to its corrosive essence a core problem of judicial elections: Gableman received free counsel from a law firm that asked for his vote, an explicit conflict of interest; and worse, he gave his vote five times.”

The problems illustrated by the events in Wisconsin are likely to be exacerbated by the 2010 U.S. Supreme Court ruling in Citizens United. That case equated independent spending with speech, and the Court concluded that putting constraints on the independent spending of corporations, unions, and other organizations in political campaigns would infringe First Amendment free speech rights. The case effectively removed limitations on special interest spending in elections, including judicial elections.

Wisconsin has expressed a growing interest in getting rid of judicial elections and replacing them with a Merit Selection system in order “to reclaim justice from politics and repair the Wisconsin Supreme Court’s reputation.” Implementing Merit Selection requires that the Wisconsin constitution be amended. The amendment would have to be passed by two, consecutive state legislatures before it could be presented to voters in a public referendum.

In the wake of the indictment of state Supreme Court Justice Joan Orie Melvin on campaign corruption charges, the call for judicial selection reform in Pennsylvania is as relevant as ever. But bringing change to the Commonwealth is a long process, just as in Wisconsin.  However, legislation is pending now in the PA General Assembly that would give the people of Pennsylvania the chance to vote on whether to adopt Merit Selection, a system that would once and for all take judges out of the fundraising game.

“Reducing justice to politics, now awash in money and swayed by deep pockets, judicial elections show how a central institution of democracy can be turned into a grubby embarrassment to good government that sometimes appears to function as a

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puppet of plutocracy.” We hope that Pennsylvanians and Wisconsinites will get the opportunity to decide whether there is a better way to choose appellate court judges.

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Jan 18 2012

Judicial Politics in Wisconsin Undermines Public Trust

Published by under Merit Selection

The courts have become a football in Wisconsin’s ongoing political fights.  Wisconsin’s judges, like those in Pennsylvania, are elected, and judicial elections have become markedly more contentious since Wisconsin Gov. Scott Walker’s row with the state’s labor unions last year.  The Wisconsin State Journal has called for merit selection stating:

 Wisconsin’s broken system for selecting members to its highest court favors partisanship and political connections when justices are appointed by governors — with zero oversight — to fill vacancies. And when elections actually do occur, Wisconsin’s system for selecting its top judges favors campaign skills and special interest backing.  Lost in the process is the need for experience, independence and impartiality.

The State Journal called for a system of merit selection that relies on a citizens nominating commission to screen candidates for potential appointment by the governor.:

Many liberal and conservative activists would rather continue to fight for control of the court in expensive, mud-slinging elections. But Wisconsin deserves and needs a high court with honor, one that doesn’t favor either political party, one that makes decisions based on the law regardless of the political fallout.

Merit selection is the best answer to Wisconsin’s embarrassing and dysfunctional state Supreme Court.

A poll conducted by Justice at Stake has

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shown that recent judicial politicking and conflict has reduced Wisconsinites’ faith in their Supreme Court from 52% three years ago to 33% today.  This highlights the dangers of judicial elections.  Whether such elections actually produce more corruption, the public’s faith in the judicial system is undermined by the perception of favoritism resulting from candidates’ fundraising and political ties.


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Mar 16 2011

Partisan Politics Already Dominating Wisconsin Supreme Court Race

Despite their ostensibly nonpartisan structure, recent elections for the Wisconsin Supreme Court have proven as bitter and heated as any political contest in memory. When then-Justice Louis Butler ran for re-election in 2008, he was defeated by challenger Michael Gableman, who led a multi-million dollar smear campaign that distorted Butler’s record.

This year’s contest, which sees self-described conservative Justice David Prosser up for re-election, is expected to be just as contentious. Wisconsin’s labor unions are making plans to oust Justice Prosser, as part of a planned push back against the recent passage of a bill stripping public unions of their collective bargaining rights.

Prosser’s opponent, former prosecutor JoAnne Kloppenburg, has received praise for her politically independent stance. Unfortunately, the intentions of the candidate often mean very little when races can be influenced by political party and interest group spending that’s completely out of their control. In the 2008 race, outside groups out-spent the candidates by almost 11 to 1, a margin which even alarmed the candidates themselves.

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No matter how apolitical Kloppenburg remains, the unfolding narrative of the election is already becoming clear. The unions and the political left are promoting Kloppenburg as a weapon against the policies of Governor Scott Walker and the Republican-controlled state legislature. The pretense of nonpartisan elections has never been less accurate. Whatever your political views, the judiciary is diminished whenever a judicial contest is decided not on the qualifications and ability of the judges in question, but by political expedience and campaign spending.


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Jul 19 2010

Merit selection an antidote to partisan politics in Wisconsin

Friday’s Wisconsin State Journal editorial asks the question,

Shouldn’t a Supreme Court candidate’s legal skill and fairness be more important than ability to raise campaign money and win partisan support?

The answer seems clear. Yet, in the wake of the “Gableman affair,” in which the state Supreme Court deadlocked along party lines over a complaint accusing Justice Michael Gableman of lying about an opponent in a campaign ad, Wisconsinites are realizing that “legal skill and fairness” may be taking a back seat due to the state’s practice of electing its judges.

The increasingly partisan nature of Supreme Court elections is rapidly erasing the line that once insulated the judicial branch of government from the partisan politics of the legislative and executive


The “Gableman affair” has been characterized as a tipping point.

From the campaign to the ethics case, politics shaped a process that should have been shaped by the law.

But there may be a silver lining. Many are now second-guessing the soundness of judicial elections. The Wisconsin State Journal, along with the Beloit Daily News and Milwaukee Journal Sentinel, has advocated for replacing this politically driven process with a system of merit selection. Merit Selection, in which candidates are evaluated based on their qualifications by a nonpartisan commission, would provide for greater transparency in the judicial selection process and ensure that the most fair and candidates reach the bench.

The editorial closes with an answer to its own question.

Wisconsin should restore public trust in the Supreme Court by shifting to merit selection of justices.


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Jul 07 2010

“…just another layer of partisan politicians, except with black robes.”

Published by under Merit Selection

Wisconsin’s largest newspaper, the Milwaukee Journal-Sentinel, is calling for the state legislature to explore selecting justices instead of electing them in light of a recent Supreme Court deadlock over whether to sanction current Justice Michael Gableman for lying in his campaign:

And, still, the 3-3 deadlock on whether to sanction Justice Michael Gableman for a campaign lie does send a message: Supreme Court justices are mere politicians, allowed to lie without consequence to secure plum jobs. And this prompts the question: Why should voters believe that the mere act of donning black robes will suddenly transform any justice who lies to get elected into the picture of legal impartiality and propriety?

Gableman’s campaign accused his opponent, a public defender, of finding a “loo

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There has been a movement across the nation to challenge and strike down rules and regulations that set up special conditions for judicial elections.  Pennsylvania’s Code of Judicial Conduct (which regulates judicial candidates as well) provides in Canon 7B1(c) that “Candidates, including an incumbent judge, for a judicial office. . . should not . . . misrepresent their identity, qualifications, present position, or other fact.”  Will Pennsylvania be the next state to find that “should not” is just an aspiration and judicial candidates are free to mislead the voters in their quest to reach the bench? Let’s hope not.


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Nov 06 2009

A better judge than a politician

From our friends at Gavel Grab:

Former Wisconsin Justice Louis Butler Jr. . . . . nominated by President Obama to the federal bench in Wisconsin, was asked by a GOP senator at a confirmation hearing in Washington about his defeat in two elections for the state’s high court.”

We can only imagine the very slight smile that must have formed on the corner of Butler’s lips as he made this reply:

‘After 16 years on the bench, I may be a better judge than politician,’ replied Butler, according to an article in the Milwaukee Journal Sentinel.”

Butler was defeated last year in an ugly contest with then-Judge Michael Gableman, who now faces an ethics complaint accusing him of lying in a campaign ad aired against Butler.”

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Some judges would no doubt make excellent and effective politicians, and some politicians would likely make fine judges. But we think using mere “electability” as the decisive factor in how we choose our judges leaves too much to chance, and gives too much weight to factors other than a candidate’s qualifications.  For choosing our judges, being a good politician should not be more important than being fair, impartial, and wise. Judges should be chosen on merit.


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Sep 23 2009

Wisconsin Takes a Hard Look at the Way it Chooses Judges

Published by under Judges,News,Opinion

Last week, we wrote about a case currently before a state court panel in Wisconsin involving Michael Gableman, a then-candidate for the state’s Supreme Court who ran an ad against his incumbent opponent. The ad was quite misleading (at best).

According to the National Law Journal, that case may be ultimately headed for the U.S. Supreme Court. In 2007, Washington State’s Supreme Court struck down a state law that prohibited false political ads about opponents as violating the First Amendment protection free speech.  If the Wisconsin Supremes now rule against Gableman’s advertisement, a conflict between the states on an interpretation of the federal constitution will give rise to a basis for Supreme Court review.

Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar’s judicial integrity campaign committee also was “highly critical” of the ad.

“I think the law is eventually going to say that, when you have a judicial election, it’s just the same as any partisan election,” Basting said.

Whichever way Wisconsin rules, the very fact that judicial candidates are mixed up in these types of questions – how low can you go when running for office and stay within your First Amendment rights – highlights the inherent flaw with judicial elections.  Bastings continued in the NLJ article:

“That’s why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges.”

What will it take to convince Pennsylvanians to take a similar hard look?

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Sep 18 2009

Should Judicial Candidates be Permitted to Deceive the Public to Get Elected?

Published by under Judges,News

Yet another reason why judges and elections should not mix, brought to our attention by our friends over at GavelGrab: In 2008, Michael Gabelman, then a Wisconsin Circuit Court judge, ran a television ad against his opponent, a then-sitting justice on the Wisconsin Supreme Court, Louis Butler, Jr. The ad was, at best, deceptive.  A three-judge panel that heard arguments in the case on Wednesday is trying to decide whether the statements in the ad, put together, constituted an outright lie.  The facts of the case, in short, via the Milwaukee Wisconsin Journal Sentinel:

A month before the election, Gableman ran an ad about a case Butler worked on as a public defender involving child sex offender Reuben Lee Mitchell.

“Butler found a loophole. Mitchell went on to molest another child,” the ad said. It then questioned whether the public would be safe with Butler on the court.

Unmentioned in the ad was that Butler won the appeal, but the Supreme Court ruled that errors in the case were not sufficient to overturn the conviction. Mitchell didn’t commit the subsequent crime until he was released on parole.

The Wisconsin Code of Judicial Conduct, like Pennsylvania’s, prohibits false or misleading statements by judicial candidates.

According to Gabelman’s attorney James Bopp, Jr., however, judicial candidates have a right to mislead voters in advertisements, even if it is ill-advised, as long as they are not knowingly misrepresenting information about their opponents. The Journal Sentinel article continues:

“I don’t think misleading is something good, (but) it can’t be sanctioned,” he said.

“The discussion, the debate, the issues that are raised, that’s for the voters to settle – not the courts. . .”

Is this why we elect judges in Pennsylvania?  So candidates can do their best to convince the public that their opponents are evil? Call it what you will – deception or lies – is this type of smear campaign an inevitable result of forcing candidates for the bench to run for their positions? It is an unfair burden to ask those meant to be impartial interpreters of the law to justify their qualifications in expensive 30-second sound bites.

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