The candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court.., the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

– Abraham Lincoln, First Inaugural Address


Wisconsin government has been infected by a poisonous presence. Apparently, this corrosive phenomenon is so dangerous, it has prompted one of the largest newspapers in the state to call for a constitutional amendment to eradicate it. And what exactly is so damaging to our democracy?

Well…democracy, actually.

Disillusioned by the spending in and tone of the state’s recent Supreme Court elections, the Wisconsin State Journal has repeatedly called for justices to be picked by an “impartial” committee, rather than by popular vote.[i] They argue that the concepts and rulings handled by the Court are far too complex for your average voter, and submitting judges to common elections is a vulgar way of picking such sacred positions. According to supporters of “merit” selection, picking judges via election is like painting a Matisse with crayons.

In their four (to date) editorials pushing such a “merit” system of picking judges, the State Journal repeatedly cites the need for “qualified” judges who don’t “appear” corrupt. Yet they cite no judge currently on the bench who they consider unqualified as a result of being picked by popular election, and they can’t name a single court action or decision handed down that is the result of this supposed “corruption” that would lead them to disenfranchise every voter in Wisconsin. Apparently they believe that one of these days, the produce manager at your local grocery store is going to slip by a confused electorate and end up on the high court.

The conceit inherent in their position lies with their elevated view of the Supreme Court. Supporters of appointed judges apparently believe in the concept of “judicial supremacy,” which gives the Court heightened importance over the other two branches of state government. Yet one must ask the obvious question: Why is democracy acceptable when picking legislators, who write hundreds of new laws each year, but not judges, who will rule on a fraction of a percent of those laws? It would seem that the 132 legislators who write all of our laws and formulate budgets would be much more susceptible to corruption. Why bother electing them?

A system of picking judges via backroom dealing runs counter to the very principles on which our government is founded. One doesn’t have to read too far into the Declaration of Independence to find that our government derives all of its powers from the “consent of the governed,” not from “people who the State Journal thinks are swell.”

In fact, one of the harshest criticisms of the court system as it currently exists is the extent to which it is insulated from public opinion. Interest groups can often convince sympathetic judges to enact new laws that would never make it through the legislative process. For instance, Wisconsin voters in 1993 approved a constitutional amendment to ban casino-type Indian gaming in the state. In the 2004-05 term, the Wisconsin Supreme Court interpreted the strict ban on gaming expansion to mean tribes could offer any types of gambling they wanted – the exact opposite of what voters had approved. This year, voters will be able to offer their opinion about whether that case was decided correctly. Yet proponents of the “merit” system would deny the public that opportunity, thinking that somehow silencing citizens makes for a fairer Court.

The true irony in the State Journal’s argument is that any change to the way judges are picked would have to be made via constitutional amendment – which, of course, must go before the full public for a vote. So the voters would have to go to the polls and affirmatively vote away their right to determine how their laws are interpreted. Then again, the paper thinks you as a voter are easily confused, so maybe they think we’d pass such an amendment. In fact, given the importance of constitutional amendments, maybe we shouldn’t leave those up to voters, either. Perhaps we should just appoint a “nonpartisan” board to determine what our Constitution says, instead of suffering through those messy elections.

Perhaps the most interesting part of the State Journal’s crusade is the role that the paper itself plays in setting the tone of judicial elections. Recent paper articles pertaining to the ongoing judicial election have dealt solely with each campaign’s charges and counter charges. So while the newspaper decries the “mudslinging” in judicial races, they gobble up the candidates’ press releases like fried cheese curds. Perhaps the Wisconsin State Journal could begin to remedy the poorly informed electorate by actually reporting on something other than what the candidates and third party spenders tell them to.

Instead, their solution is to shield our virgin eyes from the horrors of democracy, as if we are all incapable of judging candidates rationally. Clearly, we are all simple-minded rubes who sit in front of our glowing televisions and take the advertisements we see literally. Discussion of a candidate’s judicial philosophy or past rulings is off-limits, labeled as “sordid” campaigning. It seems to be a risky proposition for a newspaper to repeatedly accuse its own readers of being incapable of having an opinion about how the laws under which they choose to live are interpreted.

In 1903, voters approved expansion of the Wisconsin Supreme Court to seven elected judges, via constitutional amendment. That year, the Dane County Bar held a meeting to pick the judicial candidates it thought were most “qualified” to serve, in an attempt to bully voters unto supporting their preferred picks.

At the time, one strong voice ripped the Dane County Bar’s maneuver, pointing out that their supposed “nonpartisan” recommendations were all loyal soldiers in the LaFollette administration. To wit:

“The Madison Democrat diverts itself from day to day in forecasting judges. It gives names by the dozen, all ardent workers in the LaFollette vineyard for years. They have earned their reward, intimated the Democrat. It indicates that unconsciously the public is losing the solemn sense that long attended the investiture of the ermine. Meanwhile, the work of projecting the “organization” into every nook and cranny of the state goes forward.”

If only the Wisconsin State Journal still stood up for the rights of the voter like it did on March 25th, 1903.

-March 6, 2008
[i] Puzzlingly, one of these editorials attempted to make the case that democracy isn’t really all that important, since most judges begin their tenure as appointees, anyway. Apparently, appointing judges will help fix a broken system where most judges are already appointed. How does it benefit the system to do more of what the paper thinks is a bad thing?