Public confidence in the courts has sunk to new lows in the 10 years since the State Bar last studied public trust and confidence in the courts. I am not surprised. The Bar’s Public Education Committee is working to determine what we as a profession can do to help the public understand the role of fair and impartial courts in applying the rule of law. There is more work to be done by all participants in our justice system.
Vol. 84, No. 10, October 2011
The first purpose of the State Bar of Wisconsin is “to aid the courts in carrying on and improving the administration of justice.” (SCR 10.02) In June, I took the oath of office as your president “to support Wisconsin lawyers, promote public service, and aid the supreme court in the administration of justice.” Simply put, my current role is to carry out the organization’s purposes and advocate for the interests of the members and the public. In fact, the oath obliges me to assist the Wisconsin Supreme Court to improve the justice system. Both lawyers and the public have a stake in an impartial, independent, credible, and well-functioning justice system. As a trial lawyer for poor people and as State Bar president, I assess a forum, whether small claims court or supreme court, to determine if it is capable of dispensing justice in a fair and rational manner based on the facts and the law.
The media report that our Wisconsin Supreme Court is in crisis. Recent polls showing a 25 percent drop in public trust in the court do not surprise me. In less than two years, public confidence in the courts has sunk from the low 50 percentiles to the low 30 percentiles. Much has changed in the 10 years since the State Bar last studied public trust and confidence in the courts. Money and politics threaten the integrity of the justice system and courts’ institutional standing. Citizens United v. FEC, 130 S. Ct. 876 (2010), which equated financial expenditures with protected political speech, fundamentally changed judicial elections. Massive third-party and corporate campaign expenditures, negative campaign strategies, and saturation campaign advertising have turned Wisconsin’s supreme court contests into a political circus because candidates can no longer control their own campaigns. Recent media reports regarding breaches of civility by members of the supreme court have only added to the negative public impression that blankets the justice system statewide. Justice not only must be fair and impartial but also must be regarded as such by the public.
Money and partisan politics in judicial elections might totally extinguish remaining public goodwill in the third branch of government. Although Wisconsin has a strong tradition of electing its public officials, how we select and retain our judiciary needs to be reexamined. A system of merit selection of judges needs to be considered. Judicial campaign funding needs to be scrutinized. Judicial recusal also needs study. Not only is good policy important to restoring public trust and confidence, but how the public understands policy is essential. Our Public Education Committee is working to determine what we as a profession can do to help the public understand the role of fair and impartial courts in applying the rule of law.
The justice system is the public infrastructure for lawyers’ work; it is not solely the domain of judges. The organized bar has an obligation to advocate for a justice system for which everyone has high regard. Much work needs to be done, primarily by the judiciary itself. The State Bar will do our part, serving our members and the public.