Vol. 84, No. 12, December 2011
During the past four years, election campaigns for the Wisconsin Supreme Court have generated exceptional controversy and rancor. During her successful 2007 election campaign, Justice Annette Ziegler was charged with failing as a circuit court judge to make full disclosure of potential conflicts of interest to parties appearing before her, and she was ultimately reprimanded.1 Justice Michael Gableman was charged with making misleading statements during his successful 2008 campaign against incumbent Justice Louis Butler; the supreme court ultimately deadlocked on a 3-3 vote as to whether his statements warranted discipline.2 In early 2011, the furor over the restriction of public employee collective bargaining rights by Gov. Scott Walker and the legislature turned Justice David Prosser’s reelection campaign into a war marked by bitter words and heavy spending by independent interest groups on behalf of both Justice Prosser and his opponent. Shortly after the election, a new controversy broke out over alleged altercations among Justice Prosser, Justice Gableman, and Justice Ann Walsh Bradley.3
These recent storms have revived a long-dormant debate over the proper method for selecting Wisconsin’s judges. Wisconsin has chosen all its judges by popular election since becoming a state in 1848, but in 2008, as the controversy over Justice Ziegler’s campaign came to a climax, the Wisconsin State Journal (based in Madison) called for a constitutional amendment providing for “merit selection” of supreme court judges. The State Journal argued that recent supreme court campaigns had “degenerated into mud-slinging messes influenced by interest groups with big bankrolls … [and] dominated by misinformation,” and that merit selection would yield “the best qualified judges and … do so in an impartial manner.”4 The Milwaukee Journal Sentinel, the state’s highest-circulation newspaper, followed suit shortly afterward, and others have joined in the call in the wake of the Gableman campaign controversy and the political and legal turmoil of 2011.5
The recent debate over judicial-selection reform has mostly lacked historical perspective. Wisconsin’s elective system is the product of a prolonged debate that originated in 17th-century England and later engaged the energies of some of Jacksonian America’s leading political theorists. Reaction to an elective judiciary began during the Progressive era and generated a new debate, which has continued to this day. As state voters ponder whether to adopt merit selection, it is vital to consider why Wisconsin chose an elective judicial system in the first place and to ask whether conditions have changed to the point such that a new system is necessary. This article recounts the history of Wisconsin’s elective system to help Wisconsinites answer these questions.
Origins of the Judicial-selection Debate
British law played a dominant role in shaping early American law. Before 1700, the British crown had unlimited discretion to choose judges and to remove them at pleasure. The Stuart kings who ruled England for most of the 17th century freely removed judges whose decisions displeased them and substituted more complaisant judges. The most notorious example was King James I’s replacement of Edward, Lord Coke as Chief Justice of the King’s Bench in 1616 because Coke had held that the law prevented James from defining treason and transferring church property as he wished.6
Later in the 17th century, a movement arose to limit royal powers of judicial removal and to increase judicial independence. In 1700, Parliament enacted the Act of Settlement, which gave judges life tenure subject to “good behavior”: they could be removed from office only for corruption and other egregious abuses of judicial power.7 Life tenure remained a component of the most advanced model of judicial selection and tenure throughout the 18th century. It was incorporated into the U.S. Constitution in 1788 and remains the basis for federal judicial selection to this day.8
Even after the Founders proclaimed in the Declaration of Independence that governments “deriv[e] their just powers from the consent of the governed,” government in the early republic remained “government by gentlemen.” Many states allowed only owners of substantial amounts of property to vote and hold office. After 1800, Americans increasingly favored expansion of popular participation in government. Andrew Jackson and his supporters added a new element: they viewed with suspicion representative democracy (that is, lawmaking and selection of officials by governors, legislators, and other representatives of the people rather than by the people directly) and they encouraged direct connections between the people and government wherever possible. This strain of thought influenced the American legal system in many ways. For example, it triggered a movement for codification so as to make American law simpler and more accessible to laypeople, and, somewhat later, a movement for popular election of judges.9
The Rise of an Elective Judiciary
In 1832, Mississippi became the first state to create an elective system for all judges. New York also created an elective system when it adopted a new state constitution in 1846. The New York convention debates heavily influenced several other states that fashioned new constitutions in the late 1840s and early 1850s, including Wisconsin.10 In 1848, former Ohio Supreme Court justice Frederick Grimke published Considerations Upon the Nature and Tendency of Free Institutions, arguably the leading intellectual synthesis of Jacksonian philosophy.11 Grimke and the New York convention delegates responded to the main criticisms that had been raised, and are still being raised today, against an elective judicial system.
First, critics argued that in a party-dominated political system, judicial candidates would be selected based on political loyalty and service rather than integrity and legal ability. Once elected, judges would be beholden to their parties and would tailor their decisions accordingly.12 New York convention delegates responded that partisan considerations had played a leading role in the state’s appointive system. They echoed an argument made by other Jacksonians that any system of selection may make a judge feel obligated to the source of his office, and that the question is “not whether they [judges] shall be influenced at all, ... but from what quarter that influence shall come.”13 New York delegate Ira Harris argued that influence should come from the voters. “[T]he great mass of the people are intelligent and virtuous,” he said; therefore, “in the choice of judicial officers, partisan influences never could wholly prevail nor popular opinion be mounted and controlled by demagogues.”14
Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison and Brookfield. He is the author of Trusting Nothing to Providence: A History of Wisconsin’s Legal System (1999); In the Wake of Slavery: Civil War, Civil Rights, and the Reconstruction of Southern Law (2006); and Deposition Objections (2010). He is also an adjunct professor at Marquette University Law School.
Second, critics of the elective system argued that even if elected judges were not subservient to parties, they would consider themselves subservient to the people and would decide cases based on prevailing popular sentiment rather than fulfilling their duty to uphold established principles of law. New York delegates replied that generally, voters could be trusted to rise above mere partisanship, and that any judge who made decisions based on popularity rather than legal principles “could not, for a moment, have stood the ordeal of a popular election.”15
Critics also questioned voters’ ability to evaluate judicial merit. Law, they argued, is a specialized field that is necessarily somewhat inaccessible to those without training or experience in it; thus, laypersons cannot be expected to discern the best candidates for the bench. This argument was antithetical to the core Jacksonian belief that judges should be brought closer to the people, not elevated above them. For example, Grimke suggested that even if elected judges were occasionally swayed by political winds, that was a price worth paying. “There is a very wide difference,” he said, “between being drawn from the path of rectitude and duty by every temporary gust of party spirit and submitting the mind to the healthful influence of those opinions and feelings which grow up in the progress of every improving society.”16
Several New York delegates emphasized that even though the state’s old appointive system had produced able judges, they had become a “judicial aristocracy, feeling no responsibility to the primary source of all power,” and that elected judges would regard the people “with more leniency and … learn to respect the rights of jurors, witnesses, counsel and parties.”17 The delegates also argued that direct election of judges was an essential means of preserving the judiciary’s role as a check on legislative and executive excesses: only elected judges could be relied on to “stand by the constitution of the State against the encroachments of power” by other branches of government.18
Wisconsin Chooses an Elective Judiciary
Wisconsin began the process of applying for statehood in 1846 as the New York convention completed its work. Wisconsin’s first constitutional convention, which met in the fall of that year, was dominated by Democrats, but they were divided between thoroughgoing Jacksonians and a faction that preferred slower-paced reform.19 This division was reflected in the convention’s judiciary committee, which voted only narrowly, by a 5-4 margin, to recommend an elective rather than an appointive system.20
The committee majority’s report sounded many of the themes articulated by Grimke and the New York delegates. Chairman Charles M. Baker of Lake Geneva began by arguing that opposition to an elective judiciary was founded on “distrust of the ability of the people for self-government, a desire to save them from themselves.”21 Baker rejected the idea that selection of candidates by parties, who at least were “fresh from the people,” was inferior to selection by political elites. “Are governors and senators so wise they cannot err,” he asked, “so firm and pure they may not be swayed by improper influences?”22 Baker also downplayed fears that elected judges would cater to the popular will in the hope that they thus would be retained in office. “Nothing in this country,” he argued, “would sooner seal the political doom of any judge, by all parties and every honest man, than the attempt to bend his decisions from the line of justice to make political capital.”23
The main opposition to an elective judiciary came from Edward G. Ryan of Racine, who was to become chief justice of the Wisconsin Supreme Court 30 years later. Ryan argued that election of executive and legislative officials was appropriate because they were “mere agenc[ies] to record the popular will,” but the judiciary was different: it “represents the written law of the land; it represents the eternal principles of truth and justice; it … [must] stand on the eternal rock of right, unswayed by all the clamorous waves of opinion chafing its unconscious base.”24 Ryan argued that although elected judges might not deliberately tailor their decisions to public opinion, they would do so subconsciously: many would “think the public will [is] their own … never conscious that the public judgment is unseen governing their own dream.”25
Ryan favored a version of merit selection providing for appointment of judges by the governor subject to approval by 75 percent of the state senate, together with periodic popular votes on retaining the judges,26 but Ryan failed to win over his colleagues. After hearing him out, the convention overwhelmingly voted in favor of an elective system. Wisconsin voters rejected the 1846 constitution but did so for reasons unrelated to the judiciary-selection provision, and with little debate, a second constitutional convention (1847-48) inserted a similar elective-judiciary provision in Wisconsin’s 1848 constitution.27
Some of the problems predicted by opponents of an elective system came to pass during Wisconsin’s early years as a state. Wisconsin judges were nominated by partisan conventions from 1848 until the mid-1870s, and political winds blew some judges into office and others out. Justice Samuel Crawford was defeated for reelection in 1855 after he cast an unpopular vote defending the constitutionality of the federal Fugitive Slave Act of 1850, and several justices narrowly escaped defeat at the polls in the early 1860s after the supreme court issued a series of unpopular decisions striking down debtor-relief laws.28 The partisan nomination system died out after 1880: lawmakers and bar leaders agreed that a partisan balance should be maintained on the supreme court, and thereafter candidates were identified through informal discussions among these leaders.29
The Modern Judicial-selection Debate
Around 1900, at the dawn of the Progressive Era, dissatisfaction with an elective judiciary rose once again. Specialization of function was becoming an increasingly common part of life as America grew and industrialized, and many in the legal profession came to believe that to be effective and retain respect, judges should be detached from the rest of the profession and from society. Luminaries including President William Howard Taft and Roscoe Pound, dean of the Harvard Law School, argued that elective systems were incompatible with this goal.30 In 1914, Albert Kales of the American Judicature Society developed a modern “merit-selection” system as a solution. Under Kales’s proposed system, governors (with the consent of the legislature, if desired) would initially appoint judges; periodic elections would be held in which the judges would not have opponents but the people would have the right to retain or reject the judges.31
The merit-selection system made little headway at first, but starting in the late 1930s, endorsement by the American Bar Association and a series of judicial scandals gave it impetus. In 1940, after two decades of deeply politicized judicial elections marked by high judicial turnover and a 1938 election in which “Boss” Tom Pendergast’s Kansas City political machine turned against a respected judge whose election it had earlier secured, Missouri adopted Kales’s plan, which then became popularly known as the “Missouri Plan.”32
In 1958, Kansas adopted the plan after a defeated incumbent governor turned his office over to the lieutenant governor shortly before his term expired in return for an appointment to that state’s supreme court. Judicial scandals also prompted Oklahoma to adopt the plan in 1967 and Rhode Island to adopt the plan in 1994; other states adopted the plan even in the absence of scandal.33 Currently, 24 states use merit selection to choose the judges of their highest court, 21 states use an elective system, and in five states such judges are appointed either by the governor or the legislature.34
The Wisconsin State Bar Association seriously considered recommending a merit-selection system in 1934.35 However, the State Bar’s recommendation drew no reaction from the legislature or voters, and in 1938 the State Bar changed its mind, concluding that merit selection was acceptable but that “at the present juncture there is [no] crying need for a change.”36 Calls for merit selection continued intermittently. In 1968, after Chief Justice George Currie, a nationally respected jurist, was unexpectedly defeated for reelection, a citizens committee tried to revive support for merit selection and secured the endorsement of Chief Justice Harold Hallows, but in 1973 a governor’s commission divided on the issue and made no recommendation.37
In 1997, retired Chief Justice Nathan Heffernan defended Wisconsin’s elective system but sounded one of the earliest warnings that campaign spending by groups outside judicial candidates’ control might adversely affect the integrity of judicial elections.38 In 2001, Wisconsin Court of Appeals Judge Richard Brown proposed a modified merit-selection system, arguing that Wisconsin’s elective system puts candidates who are legally skilled but politically unskilled at a disadvantage.39
Calls for a merit-selection system resurfaced in early 2008 in the wake of disciplinary proceedings against Justice Ziegler. The Wisconsin State Journal launched an editorial-board initiative advocating merit selection, relying heavily on arguments first made in the 1840s and during the Progressive Era that the judiciary should operate on a plane above the other branches of government and should not be driven by popular sentiment. Soon afterward, the Journal Sentinel also came out in favor of merit selection.40 Calls for change intensified in mid-2011, following the close of Justice Prosser’s reelection contest and disclosure of alleged physical confrontations among members of the Wisconsin Supreme Court.41 In July 2011, two state senators, Dale Schultz (R-Richland Center) and Tim Cullen (D-Janesville), introduced a bill calling for amendment of the Wisconsin Constitution to provide merit selection.42
Arguments advanced by current Wisconsin supporters of merit selection contain echoes of 19th-century and Progressive Era arguments but also differ in important ways. Current supporters argue that partisan division and intemperate rhetoric and behavior are now serious problems for the supreme court; “the quality and experience of court candidates has been slipping over the last decade”; such problems have arisen “as judicial campaigns have become more vicious and money-soaked”; and such campaigns, and thus the problems at issue, are a product of the elective system.43
Unlike their predecessors, current merit-selection supporters have shied away from challenging voters’ ability to evaluate judicial candidates and from charges that Wisconsin’s judges are catering to popular sentiment to win reelection. Instead, their arguments have centered on the campaign-finance system, particularly the fact that it allows anonymous individuals and groups to spend unlimited amounts of money promoting judicial candidates, thus giving them a great deal of control over candidate recruitment and success.44
The U.S. Supreme Court has made clear in recent decisions that such spending is a form of speech and cannot constitutionally be limited; thus, merit-selection supporters are not pressing for campaign finance reform, although some have suggested that broader disclosure laws should be enacted.45 Instead, they look to merit selection as a means of eliminating campaigns, and thus campaign financing and its attendant ills, from the judicial selection process.46
Merit-selection supporters have not addressed the points made by 19th-century supporters of an elective system (and by several recent Wisconsin commentators) that any method of selecting judges, including perhaps the appointment of commission members who would select a group of candidates to be submitted to the governor, is likely to be influenced to some extent by political considerations.47 Likewise, they have not addressed whether an elected judiciary or merit selection is more consonant with modern democratic ideals.
Elective-system defenders have not yet entered the current debate in force. This is not due to lack of support for the elective system: a recent poll shows that a substantial majority of voters (59%) favor retaining an elective system.48 Amending the constitution to incorporate merit selection would be a difficult process, requiring passage of a resolution by two consecutive legislatures followed by voter approval in a referendum.49 Thus, defenders might not consider the change likely at present, but they may well enter the debate if they perceive that the constitutional amendment proposed by Sen. Schultz and Sen. Cullen has a real chance of passage.
If elective-system defenders do enter the fray, they might repeat many of the themes raised by their 19th-century predecessors. In particular, they may try to reframe the debate. To Jacksonians, the central issue was not whether politics should be eliminated from the judicial selection process but whether the power to choose judges should be put in the hands of “the honest many” or “the enlightened few.”50 If modern defenders depict the choice in terms of these competing visions of republicanism, the contours of the debate may shift dramatically. It remains to be seen exactly how the debate will evolve, but history strongly suggests it will engage Wisconsinites’ emotions as well as their intellects and that both forces will play an important role in its outcome.
1Wisconsin Judicial Comm’n v. Ziegler (In re Judicial Disciplinary Proceedings Against Ziegler), 2008 WI 47, 309 Wis. 2d 253, 750 N.W.2d 710.
2Wisconsin Judicial Comm’n v. Gableman (In re Judicial Disciplinary Proceedings Against Gableman), 2010 WI 61, 325 Wis. 2d 524, 784 N.W.2d 605; Wisconsin Judicial Comm’n v. Gableman (In re Judicial Disciplinary Proceedings Against Gableman), 2010 WI 62, 325 Wis. 2d 631, 784 N.W.2d 631.
3“Wisconsin Elections Board Certifies Supreme Court Recount Win for Prosser,” Wis. St. J., May 23, 2011, available at http://tinyurl.com/3quozj7; “Gableman Says He Had Date Wrong in Account of Alleged Bradley Head-Smack,” Wis. St. J., Sept. 2, 2011, available at http://tinyurl.com/3c4b8ts; “Sheriff’s Report Shows Dysfunction in, Pressure on Supreme Court,” Wis. St. J., Aug. 26, 2011, available at http://tinyurl.com/3vj424x.
4Editorial, “Merit Reform Provides Answers,” Wis. St. J., June 15, 2008, available at http://tinyurl.com/3uvfxqm (“State Journal June 15, 2008, editorial”); Editorial, “Appointing Justices: After Two Nasty Campaigns that Have Harmed the Credibility of Wisconsin’s Highest Court, It’s Time to Change the Way that the State Selects Justices,” Milw. J. Sentinel, April 16, 2008 (“Journal Sentinel April 16, 2008, editorial”), cited in Diane S. Sykes, “Independence v. Accountability: Finding a Balance Amidst the Changing Politics of State-Court Judicial Selection,” 92 Marq. L. Rev. 341, 342 n.3 (2008).
5See Editorial: “Keep Partisan Politics Off the Court,” Wis. St. J., July 16, 2010, available at http://tinyurl.com/3kl389v; “Editorial: Appoint the Justices,” Milw. J. Sentinel, April 11, 2011, available at http://tinyurl.com/4y4wnhe (“Journal Sentinel April 11, 2011, editorial”); Editorial: “Supreme Court Fracas Unacceptable, Another Reason for Reform,” Wis. St. J., June 28, 2011, available at http://tinyurl.com/3j367g9 (“State Journal June 28, 2011, editorial”).
6Frederick Hicks, Men and Books Famous in the Law 75 (1921).
712 & 13 Will.2, c.2 (Eng.) (1700).
8U.S. Const. art. III, § 1; see G.S. Rowe, Embattled Bench: The Pennsylvania Supreme Court and the Forging of a Democratic Society, 1684-1809, at 98-100 (1994).
9F.C. Mosher, Democracy and Public Service 55-63 (1968).
10See Milo M. Quaife, ed., The Convention of 1846, at 127, 142, 217, 224, 285, 381 (1919).
11Frederick Grimke, Considerations Upon the Nature and Tendency of Free Institutions (1848; republished, Harvard Univ. Press, 1968); Paul Carrington & Adam Long, “The Independence and Democratic Accountability of the Supreme Court of Ohio,” 30 Capital U. L. Rev. 455, 457 (2002).
12Report of the Debates and Proceedings of the New York Convention for Revision of the Constitution [“New York Debates”] 579 (remarks of Ambrose Jordan), 784 (remarks of Charles Kirkland).
132 Official Reports of the Debates and Proceedings in the State Convention, Assembled May 4th, 1853, to Revise and Amend the Constitution of the Commonwealth of Massachusetts 773 (1853) (remarks of Edward Keyes), quoted in Caleb Nelson, “A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America,” 37 Am. J. Leg. Hist. 190, 217 (1993).
14New York Debates, supra note 12, at 645 (remarks of Ira Harris), 672 (remarks of Michael Hoffman).
15Id. at 645 (remarks of Ira Harris).
16Grimke, supra note 11, at 448.
17New York Debates, supra note 12, at 651 (remarks of William Wright), 719 (remarks of Levi Chatfield).
18Id. at 672 (remarks of Michael Hoffman).
19Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin’s Legal System 48-50 (1999); Ray S. Brown, “The Making of the Wisconsin Constitution,” 1949 Wis. L. Rev. 648, 652-53.
20Quaife, supra note 10, at 296.
21Id. at 288-89.
23Id. at 290.
24Id. at 594-95 (remarks of Edward G. Ryan).
25Id. at 598.
26Id. at 601.
27Id. at 303-04, 742; Milo M. Quaife, ed., The Attainment of Statehood 218, 247-50 (1928); Wis. Const. (1848) art. VII, §§ 4, 7.
28Ranney, supra note 19, at 88-92, 102-03; Nathan S. Heffernan, “Judicial Responsibility, Judicial Independence and the Election of Judges”, 80 Marq. L. Rev. 1039-40 (1997); John B. Winslow, The Story of a Great Court 85-92 (1912).
29See Winslow, supra note 28, at 284-85, 356, 380, 385-86; Siefert v. Alexander, 597 F. Supp. 2d 860, 865-66 (W.D. Wis. 2009), aff’d in part, rev’d in part, 608 F.3d 974 (7th Cir. 2010), cert. denied, 131 S. Ct. 2872 (2011).
30William H. Taft, “The Selection and Tenure of Judges,” 38 Am. Bar. Assn. Reports 418 (1913); Roscoe Pound, “Causes of Popular Dissatisfaction with Justice” (1906), printed in 46 Am. Judicature Soc’y 55 (1962); Glenn R. Winters, “Selection of Judges – An Historical Introduction,” 44 Tex. L. Rev. 1081, 1083 (1966).
31Winters, supra note 30, at 1081.
32Rachel Paine Caufield, “What Makes Merit Selection Different?,” 15 Roger Williams L. Rev. 765, 770 (2010); Mo. Const. (1940) art. V, § 29(a).
33Caufield, supra note 32, at 767-70, 773-77; Winters, supra note 30, at 1084-86; Kan. Const. (1958), art. III, § 2; Okla Const. (1967), art. 7, §§ 2-3; 20 Okla. Stats. § 30.18.
34American Judicature Society, http://www.ajs.org/selection/sel_state-select-map.asp (last viewed on Oct. 23, 2011).
35Proceedings of the State Bar Association of Wisconsin 36 (Report of Committee on Judicial Selection) (Madison, WI: 1934); see also Lawrence H. Smith, “The Interest of the Public in the Judiciary,” id. at 64.
36Proceedings of the State Bar Association of Wisconsin 56, 62 (Report of Committee on Judicial Selection) (Madison, WI: 1938).
37Heffernan, supra note 28, at 1031-34, 1041-42.
38Id. at 1050.
39Richard S. Brown, “Proposal for a Modified Merit Selection Plan for Wisconsin,” 20 QLR 651 (2001).
40State Journal June 15, 2008, editorial, supra note 4; Journal Sentinel April 16, 2008, editorial, supra note 4.
41See articles cited at note 3, supra.
42“Schultz, Cullen Draft Merit Selection Resolution” (Wisconsin Senate, press release, July 1, 2011), available at http://wispolitics.com/1006/11070/SchultzCullen_release.pdf (last viewed on Sept. 17, 2011).
43State Journal June 15, 2008, editorial, supra note 4; Journal Sentinel April 11, 2011, editorial, supra note 4; State Journal June 28, 2011, editorial, supra note 4; State Journal Sept. 8, 2011, article, supra note 5.
45See Citizens United v. Federal Elections Comm’n, 130 S. Ct. 876 (2010).
46See articles cited at notes 4-5, supra.
47Sykes, supra note 4, at 342 & n.3 (citing Rick Esenberg, Op-Ed., “Elect or Appoint? Judicial Elections Are an Imperfect, Best Option,” Milw. J. Sentinel, April 13, 2008).
48Justice at Stake Campaign, July 21, 2011, “New Poll: Confidence in Wisconsin Supreme Court Plunges,” available at http://tinyurl.com/3g4uyub (last viewed on Sept. 17, 2011).
49Wis. Const. (1848), art. XII, § 1.
50Nelson, supra note 13, at 223.