You may not be aware the most important election of 2023 will take place on April 4 in the hotly competitive swing state of Wisconsin.
A primary earlier this week produced two finalists: liberal Janet Protasiewicz and conservative Daniel Kelly. Donors pumped roughly $9 million into the primary, and the spring showdown will put that multi-million tab well into double digits.
They are competing for an open seat on Wisconsin’s seven-member Supreme Court.
The election itself is what bugs me.
Granted, it’s a consequential race. The state’s high court is currently 4-3 conservative, and a Protasiewicz victory would likely swing the bench leftward. But I loathe the practice of electing high court judges. It happens in 22 states, including Pennsylvania, and it strikes me as sleaze incarnate.
The judiciary is supposed to be an independent branch of government, peopled by jurists who reach decisions based on the laws and the facts. Electing judges — compelling them to campaign and allowing them to accept donations from people who may well have a direct interest in future cases — is inherently corrupting.
According to the NYU Brennan Center and the National Institute on Money in State Politics, total national spending on state high court races in the 21st century is more than 250 percent higher than it was in the 1990s. The spending tab in the 2020 election cycle was a record high, $97 million.
In the four-candidate Wisconsin high court primary, more than $7 million was reportedly spent on campaign ads. That kind of air pollution imperils judicial impartiality. As the American Constitution Society, a nonpartisan judicial watchdog group, warned nine years ago, “State supreme court justices … are under increasing pressure to allow electoral politics to influence their decisions.”
A decade ago, the British-run Economist magazine lamented our weird American practice: “It’s fine for a politician to make deals with voters, to say, ‘Vote for me and I’ll promise to raise the minimum wage,’ or ‘Vote for me and I’ll cut your taxes.’ But it is an abuse of power for a judge to promise — or even hint — that he will decide future cases on any basis other than the facts and the law.”
Strictly speaking, Wisconsin judicial candidates don’t run with Democratic or Republican labels. But everybody knows where they stand, long before they wear the robes. Protasiewicz’s first TV ads stated unequivocally that she supports abortion rights, in a state where an 1849 law (still on the books) bans abortion statewide.
“I value a woman’s freedom to make her own reproductive health care decisions with her doctor, family, and faith,” Protasiewicz said after finishing first in the primary. It’s a point of view I happen to support, but doesn’t it undermine the credibility of the judicial branch when it’s touted on the partisan stump?
Ditto for Dan Kelly, the conservative finalist, who’s heavily bankrolled by right-wing interest groups and a Schlitz-heir billionaire. Kelly candidly said in a recent interview that “this race will tip the ideological balance of the court, and that’s true. If I don’t succeed, the balance will tip” to the liberals.
A decade ago, the aforementioned American Constitution Society examined 2,345 business-related state supreme court opinions, and matched them to campaign finance records. They found “a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.”
Alas, unicorns will gambol down your street before anything changes. Proposals to scrap Pennsylvania’s judicial elections have been floated and killed in Harrisburg for decades. Inertia will continue to erode public faith in the judiciary — at all levels, given the U.S. Supreme Court’s refusal to create its own conflict-of-interest rules. But we can’t say we weren’t warned. For instance, there was this in 2010:
“We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not those contributions actually tilt the scales of justice, three out of four Americans believe that campaign contributions affect courtroom decisions. … The crisis of confidence in the impartiality of the judiciary is real and growing. (Without reform), the perception that justice is for sale will undermine the rule of law that courts are supposed to uphold.”
Sandra Day O’Connor got it right.
Polman, a veteran national political columnist based in Philadelphia. He writes atDickPolman.net.
