Let me be the first to admit it: I was wrong.
In my end-of-the-year Cheap Shots, I chided the Wisconsin State Journal for its lame 2007 crusade -- daily railing on state Sen. Fred Risser until he fulfilled a promise he never tried to break. "Will the State Journal get gutsier in 2008?" I asked. "Don't hold your breath."
Well gosh darn and dagnabbit, Madison's morning paper has risen to my challenge. On Jan. 13 and again on Jan. 20, the paper urged that Wisconsin pick its Supreme Court justices based on merit, not elections.
It's not a new idea -- a gubernatorial task force recommended this in 1973. Nor is it novel. In fact, Wisconsin is among just 22 states that let voters directly pick justices. Most use impartial panels to cull nominees, with governors, legislatures and/or the electorate also having some say.
Merit selection opens the door to justices unwilling to endure the degradations of a modern political campaign. It ends the need to raise money and the conflicts this creates. It makes legal acumen more relevant than political connections.
In Wisconsin, judicial elections are considered nonpartisan. In truth, they are highly partisan affairs, at least at the Supreme Court level. The last several races -- Wilcox v. Kelly, Roggensack v. Brunner, Ziegler v. Clifford -- have all pitted conservatives against liberals, whether the candidates have admitted it or not. On one side, you have your Republicans and big-business lobby; on the other, your Democrats, trial lawyers and labor unions.
On both sides is money -- lots and lots of money.
At least $5.8 million was spent on last year's Ziegler-Clifford contest, most by outside groups. Nearly every penny went for TV commercials, the mother's milk of modern electoral politics.
Shortly after Ziegler's win,State Journal editorial page editor Scott Milfred seemed to give in to resignation. He wrote a column noting, somewhat sympathetically, that many voters "didn't have or make time to pore over the pros and cons of each candidate" in this race and the one for state attorney general. For these voters, the TV ads they saw making questionable claims about the candidates' relative experience "were compelling and probably the deciding factors."
That's it in a nutshell: Elections now hinge on 30-second ads. Love it or change it. The State Journal has decided to throw its weight behind change.
It's a courageous stand, one that has predictably drawn a lot of heat. Ed Garvey ripped the State Journal's proposal as "outrageous" and "irresponsible." Dave Zweifel piled on, noting that the paper editorialized against such a change 35 years ago. Both urged the state to instead pursue full public financing of Supreme Court races.
The Wisconsin Legislature may soon take up a bill to do that. SB-171 would provide qualifying state Supreme Court candidates with $100,000 for the primary and $300,000 for the general election. Some additional funding would be available to candidates whose opponents exceed spending limits or to offset independent expenditures.
But the bill is unlikely to end the spending binge. For one thing, the most any candidate could get to offset independent expenditures is three times the amount of public financing. In other words, if Wisconsin Manufacturers & Commerce were to again pour $2 million into a Supreme Court race, as it did to elect Ziegler, and other Republican groups were to spend another million, the total offset for the general election would be $900,000.
The upshot may be that $900,000 will become the new threshold groups like WMC aim to top to purchase justices they feel will be subservient to their interests.
Critics allege that any merit-selection process will be quickly corrupted. That's a valid concern, but not an unavoidable result. Wisconsin could learn from the experience of other states, and build in safeguards. Surely, we could not come up with a system that's worse.
The baseline problem is voters' lack of knowledge -- exacerbated by the opportunistic reluctance of judicial candidates to discuss their views. A recent survey of Wisconsin residentsby the national group Justice at Stake found that only 17% of likely voters felt they had "a great deal of information" regarding state judicial candidates in the 2007 election. Nearly half admitted having "just a little information," or none at all.
I'd bet the vast majority of voters have never read a Supreme Court decision and could not name even four of the court's seven current members. Yet they vote anyway. Talk about outrageous and irresponsible.
Michael Gableman, the Burnett County judge who'll be WMC's candidate against Justice Louis Butler in the April 1 election, is fond of proclaiming, "I will not legislate from the bench." I wonder how many likely voters realize this is code to conservatives for "I'm with you guys."
This phrase, also part of Ziegler's pitch, is used to signal disfavor with a series of state Supreme Court rulings in 2005 that expanded the rights of suspected criminals and the ability of injured parties to seek civil damages. Among other things, the court mandated that police record interrogations of some suspects and struck down ridiculously low caps on medical malpractices lawsuits.
Of course, conservatives legislate from the bench all the time. Take, for instance, the 1991 Foust case that exempted prosecutors' files from disclosure and the 1996 Woznicki decision that created new protections for public employees under the state's open records law. Or the series of appellate court rulings -- untouched by the Supremes -- that bar parents in Wisconsin from suing for malpractice for the death of a child past 18 years old ("When Families Have No Redress," 1/25/08).
But this is not what conservatives have in mind when they rail against judicial activism. They only mean actions that rein in corporate or institutional power. This is then sold in slick commercials to the citizens who stand to lose the most.
Of course it won't be easy to switch to a judicial selection process based on merit. But I applaud the State Journal's crusade, and hope the paper joins me in urging voters, for now, to not let themselves be played for fools in a selection process based on money.
Here's how that could be accomplished: If you are walking into a voting booth and a major part of your understanding of the choice before you comes from TV ads, turn around and walk out.