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A Good Turnout But A Bad Idea

If you love democracy, or if you just find politics entertaining, you had to smile yesterday after nearly 1.5 million votes were cast in an election for the Wisconsin Supreme Court — yet only a handful separated the two candidates in a cliffhanger that seemed bound for a recount.

On the other hand, if you want litigation to be decided on the law, rather than on public opinion, you might also ask yourself whether there can be such a thing as too much democracy.

Interest groups on both ends of the political spectrum turned the race between sitting Justice David Prosser and challenger JoAnne Kloppenburg into a referendum on Gov. Scott Walker, particularly his plan to restrict the power of public employee unions. They poured $3.5 million into advertising and helped gin up a turnout of around one-third of the eligible voters. That’s not much by the standards of a presidential race, but it is staggering for an off-season judicial campaign.

Wisconsin judicial races are officially nonpartisan. That did not stop either party from trying to get its candidate elected. Prosser is seen as a probable vote to uphold the Republican governor’s labor legislation if it reaches the state’s highest court, which is highly likely. Kloppenburg, currently an assistant state attorney general and former environmental law enforcer, is expected at minimum to be skeptical of the way in which the law was enacted, amid a Democratic walkout that deprived Republicans of a quorum in the state Senate.

Virtually nobody believed the candidates’ protestations of independence and their promises that, like any good jurists, they will not make up their minds until a case is in front of them. If the eventual winner rules as expected, there will be a widespread perception that the vote was bought and paid for by the winning campaign. If the victorious judge surprises everyone by taking the unexpected side, some supporters are going to feel cheated.

Is this how we want justice to work? I pose this question seriously, not rhetorically, because there is no perfect system of selecting judges, and certainly none that takes politics out of the selection process.

We do not elect judges at the federal level. The president nominates judges, the Senate confirms them, and a judge serves for life once confirmed unless impeached. A sitting judge is immune from having his or her salary reduced, even upon retirement. The Founding Fathers saw this unique tenure as an essential safeguard of judicial independence and integrity.

But all presidents try to choose judges aligned with their own philosophies and priorities. The Senate then seeks to apply its own filters. Under Senate rules, even a member of the minority party can block judicial nominations for considerable periods. A Senate majority that is less than thrilled with a nominee can let the nomination sit there indefinitely. We have seen this so many times in recent years that the federal judiciary below the Supreme Court is riddled with vacant judgeships.

States seldom have judicial vacancies for long, even though procedures for filling them vary widely. In 22 states, judges for the state’s highest court are elected, with party affiliations in seven states and ostensibly nonpartisan races in 15, including Wisconsin. The governor appoints high court judges in eight states, six of which require state Senate confirmation, akin to the federal system. Virginia and South Carolina have their Legislatures elect judges directly. The remaining 18 states use some version of the “Missouri Plan,” in which a commission selects a slate of potential candidates, the governor chooses a candidate from the list, and the nomination goes to one or both houses of the Legislature for approval. In many, though not all, jurisdictions, judges eventually must go before the voters either in a contested election or in a “retention” election, in which voters can remove them.

Judges who lose their jobs often do so after rendering unpopular decisions. Three Iowa Supreme Court justices lost their seats last year after joining in a unanimous ruling that same-sex couples have the right to marry. In 1986, in a campaign that included television commercials featuring children of murder victims, California voters unseated Chief Justice Rose Bird and two other justices for their opposition to the death penalty. The California jurists’ position was identical to the stance held at that time by U.S. Supreme Court Justices Thurgood Marshall and William Brennan, that the death penalty is unconstitutional in all circumstances. Marshall and Brennan, however, did not have to justify themselves to a voting public that was infuriated by rising crime rates.

Which brings us back to the question about “too much democracy.” We already have an executive branch and a legislative branch that must account to the voters. None of us, on going into court, would want our fate to be decided based on whatever transient concerns the public has at that moment. We want to be judged based on the facts, the law and the constitutional boundaries that apply to all levels of government.

Judicial elections are intended to make judges accountable to the voters. That’s undoubtedly democratic, but I do not think it is wise. Judges should ultimately be accountable to the law, or at least to their best effort to understand, interpret and apply it. There is no perfect system for selecting such judges. Elections like this week’s in Wisconsin, however, are not the least imperfect system we could use.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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