In my short time as an officer of our State Bar, I have already been approached several times about specific judicial races or pending judicial appointments. These inquiries have come from lawyers, nonlawyers, and the media. Like most people, I usually have an opinion. But, as your president, I try to keep those opinions private because the State Bar, as an institution, does not have an opinion. We don't try to put our thumb on the scales of judicial races. As an integrated bar association with mandatory membership, we represent every lawyer and judge licensed in Wisconsin, and it would be inappropriate for us to choose sides in electoral contests. And the State Bar plays no role in judicial appointments. Under Wisconsin law that is the province of the governor.
Nevertheless, our profession does have a very direct interest in our judiciary, and it is safe to say that there are several ideals that we collectively share for judges in our state: we want them to be of the highest quality; we want the judiciary to fairly reflect our population; and we want them to be independent.
While the State Bar of Wisconsin cannot intervene directly in the process as it pertains to individual races or appointments, we can pursue these ideals in other ways. In 2013, the Board of Governors adopted a policy position seeking a constitutional amendment limiting Wisconsin Supreme Court justices to one 16-year term. We believe this will ameliorate the political pressures so apparent now in the era of ever more expensive supreme court campaigns. And our State Bar association, by providing the best continuing legal education to Wisconsin lawyers, and by encouraging diversity in the legal profession, is helping to create a better, broader pool of candidates for judicial office.
But "the Bar" is not just the association. It's you, the members. While the State Bar as an institution is appropriately constrained in influencing these decisions, you are not. As the acknowledged experts on the law and the legal process in your communities, your opinions are held in high regard – and you should express them. The public naturally has limited knowledge about the true responsibilities of judges and the necessary qualities the job requires. In that knowledge vacuum, ads and slogans become loud but very poor substitutes for facts and thoughtful consideration. How many times have you shaken your head at an ad claiming a judicial candidate is "tough" or "soft" on crime, knowing that it is a judge's responsibility to be neither, but instead to weigh every case even-handedly on its own merits? Indeed, such ads are often paid for by political partisans who transparently have no particular interest in the criminal justice process at all. The crime theme is just an attention-grabbing shorthand that tries to paint judicial candidates in ideological ways.
All of which is fair enough. The case law is pretty clear that there are few limits on advertisements in judicial races, and we should not expect such ads to look much different (which is to say, better) than the ads in any electoral race do. But as lawyers we should also not hesitate to remind our fellow citizens of the critical difference between electing politicians, who we recognize will be partisan, and selecting judges, who, for very good reasons protecting all of us, need to be impartial. Soon enough the calendar will turn and we will be back in judicial election season. Be ready to speak up.