David Michael Miller
Shirley Abrahamson is many things to many people.
She is a pioneer who broke new ground when she became the first woman appointed to the Wisconsin Supreme Court in 1976. She's earned reelection four times and became chief justice in 1996. Now, nearly four decades later, she's the longest-serving justice in state history.
Abrahamson is known as a brilliant jurist, and she's prolific writer, authoring hundreds of majority opinions, concurrences and dissents over the course of her career. She's earned numerous awards and distinctions, including consideration from former President Bill Clinton for U.S. Supreme Court nomination in 1993.
"She's an intellectual icon," says Nan Aron, president of the Washington, D.C.-based Alliance for Justice. "She's a nationally renowned judge who is regarded as one of the most intelligent, analytic and energetic jurists in the country."
But for all the accolades, Abrahamson's been a polarizing and at times controversial figure in Wisconsin politics -- even among her own colleagues. Her leadership style has been criticized as "abrasive," her court has been called "dysfunctional," and conservatives say she uses her power to play politics. As chief justice, Abrahamson serves as the administrative leader of Wisconsin's court system.
This month, the state Legislature gave final approval to a Republican-backed joint resolution that would effectively remove Abrahamson as chief justice. The proposed constitutional amendment, which will go before voters April 7 in a statewide referendum, would change the way Wisconsin selects its chief justice, doing away with the seniority system and letting the court pick its leader.
Targeting Abrahamson?
A member of the court's liberal minority, Abrahamson would likely be replaced, probably by Justice Patience Roggensack. The Legislature also proposes setting a mandatory retirement age of 75 for Supreme Court justices, which would force the 81-year-old Abrahamson off the bench.
The sponsor of the constitutional amendment, Sen. Tom Tiffany (R-Hazelhurst), has repeatedly said he is not targeting Abrahamson. Supporters of the amendment say it would foster collegiality among the justices, whose feuding dates back decades.
Most recently, an argument between Justices David Prosser, a conservative, and Ann Walsh Bradley, a liberal and frequent Abrahamson ally, escalated to physical violence when Prosser allegedly choked Bradley.
For decades, there have been instances of in-court conflict. Justices Patrick Crooks, William Bablitch and Jon Wilcox publicly supported Abrahamson's rival in the 1999 election after speaking out against the chief justice's tendency to make "unilateral" administrative decisions and "jeopardizing the court's neutrality" by awarding grants to groups with social agendas.
The justices also took issue with Abrahamson hosting a late-night aerobics class in the court's hearing room, displaying a portrait of the first woman licensed to practice law in Wisconsin and taking computer games like solitaire off Supreme Court computers, according to Milwaukee Journal Sentinel archives.
However, opponents of the amendment see it as a power play by conservatives to further consolidate control of the state's judicial branch at a time when a number of politically charged cases are pending. Others worry about the amendment's potential to overturn an election.
"This is something that appears to be a partisan attack," says Fred Wade, a Madison attorney who testified in opposition to the proposed amendment earlier this month. "Whatever merits the change may have, this will further undermine the legitimacy of the court at a time when we desperately need to shore it up."
Historical basis
Differing state constitutions outline a variety of methods to select Supreme Court chief justices -- seniority, peer vote, popular election, commission nomination and confirmation.
"I'm not aware of anybody who says one method is particularly better or worse," says Ryan Owens, an assistant professor of political science at UW-Madison. "It's a matter of taste."
Including Wisconsin, there are seven states that select chief justices based on seniority. The practice, which has been in place here for more than 125 years, is a throwback to "the early days of American history," when state Supreme Court judges saw the post as a stepping stone to higher political office, says Bill Raftery, an analyst with the National Center for State Courts in Williamsburg, Va.
"Using seniority was a way to send a signal that this person was interested in being a judge and not necessarily a politico," Raftery says.
More recent state constitutions favor a peer-selected chief justice, and 22 states currently use that method. Other states select chief justices based on some variation of gubernatorial and/or committee nomination, followed by approval or legislative confirmation, and in some states, voters elect the chief justice directly by popular election. South Carolina is unique -- the state legislature selects the Supreme Court chief justice.
The NCSC doesn't recommend any method, but Raftery says there is "notable preference" that the decision should take place within the judicial branch.
Owens says there isn't much evidence that switching to peer elections would increase collegiality within the court. But he notes research suggesting courts function better when the chief justice decides which member gets to write opinions. The idea is, justices have greater incentive to work respectfully with chiefs who get to decide who writes which opinions.
"[Supreme Court justices] are well-trained lawyers, they're interested in the law, so when they get a chance to write opinions -- particularly on highly salient cases -- they want to do so," Owens says.
The Wisconsin Supreme Court currently assigns opinions to justices at random.
Money, power and partisanship
Though there's a strong ideological expectation that judges remain impartial and uninfluenced by politics, judicial elections have seen an unprecedented rise in campaign spending in recent years.
Wisconsin ranked fifth in the nation for television spending on Supreme Court races from 2000 to 2009, according to the Brennan Center for Justice, and the 2013 race between incumbent Justice Roggensack and challenger Ed Fallone topped out at $1.1 million.
Conservative groups like the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce spent close to $8 million to elect the Supreme Court's conservative majority since 2007. Money flowed in from the left as well, with public-sector unions spending big on liberal justices. The high spending has spurred debate on whether it causes a conflict of interest if and when the donating groups appear in court.
The financial escalation has prompted state lawmakers to propose changes in judicial selection methods to reassert power over the courts, Raftery says.
One recent example is in Kansas, where in 2013 Republican Gov. Sam Brownback and the legislature switched the state's appellate courts from a merit-based judicial selection method -- using a nonpartisan nominating commission -- to a federal-style model in which the governor selects a judge and the senate confirms. Similar moves have been discussed in several states.
"Other than the Kansas Court of Appeals, none have gone through yet," Raftery says. "But you are seeing them go to the ballot more often."
Raftery says changes like the one proposed in Wisconsin are rare, but when they do happen, states typically include some kind of grandfather provision to protect sitting judges.
Wisconsin Democrats in the Legislature proposed amendments to this effect, but the efforts failed, says Sen. Fred Risser (D-Madison).
"It's blatantly political," Risser says. "The Legislature shouldn't be meddling in the functions of the Supreme Court, just like the Supreme Court shouldn't be meddling in the Legislature."
Referendum on Election of Chief Justice (Wisconsin State Government Accountability Board)
