Legislative Watch
Governor Should Appoint Supreme Court Justices
Assembly Joint Resolution 63 would amend the Wisconsin
Constitution to allow gubernatorial appointment of Supreme Court
Justices.
By Mary Hubler
Article VII, Section 4(1) of the Wisconsin
Constitution provides for the nonpartisan, popular election of the
Wisconsin Supreme Court. Though the wording has been amended since the
Wisconsin Constitution first was drafted, the general concept has
remained the same - the supreme court is a judicial body elected by the
voters of this state.
It's ironic, then, that 43 of the 70 men and women who have served as
justices of our supreme court were appointed to their first terms of
office.
Don't get me wrong. I'm not saying that the appointment of more than
61 percent of our justices violates the letter of the law. Article VII,
Section 9, of the Wisconsin
Constitution authorizes the governor to fill supreme court vacancies
by appointment.
What I am saying is that appointment of supreme court justices in
Wisconsin has become the norm. And, I believe appointment of supreme
court justices works well for our state.
That is why I have introduced Assembly
Joint Resolution 63, which would amend the Wisconsin Constitution to
provide for gubernatorial appointment of Wisconsin Supreme Court
justices.
Under AJR 63:
- Current supreme court justices will continue to serve the remainder
of their terms.
- When vacancies occur - either at the end of a justice's term or
before a term expires - the governor will make an appointment for a new,
full 10-year term, with the advice and consent of the state senate.
- If the new term is scheduled to end in the same year as that of
another justice, the new term will instead end on Aug. 1 of the closest
year preceding the tenth year in which no other term expires.
The fact that a majority of Wisconsin's Supreme Court justices were
not originally elected is just the tip of a statistical iceberg that
illustrates why I believe it is time for a change. Eighteen of the 23
jurists who have served as chief justices - including Shirley
Abrahamson, Roland Day, and Nathan Heffernan - were gubernatorial
appointees. When you count Diane Sykes, the governor's appointment to
replace Justice Donald Steinmetz, more than half of the current court -
a quorum under the Wisconsin Constitution - are appointees.
I believe the April 1999 campaign offers some of the most compelling
reasons to amend the Wisconsin Constitution to provide for an appointed
supreme court.
The two supreme court candidates in that race - Chief Justice Shirley
Abrahamson and Attorney Sharren Rose - spent a record total of
$1,375,841.07. With 749,856 ballots cast in this election, their
campaigns spent $1.84 for each vote.
In a partisan general election, such spending would be a sad
commentary on our electoral system. In the nonpartisan race for our
state's highest court, it is a travesty.
(In contrast, when Justice Abrahamson last ran for reelection in
1989, both candidates accepted public campaign financing and its
spending limits. Total spending for that supreme court race, in which
882,547 votes were cast, was $428,496, or 52 cents per vote. Ironically,
their campaigns cost less than one-third of the total spent in 1999, yet
132,000 more people voted.)
Supreme court candidates in recent campaigns have resorted to
30-second sound bites to disseminate what often are complex messages.
And, unlike the high-minded supreme court campaigns of the past, the
1999 race was characterized by strident, negative television
advertising.
My former Assembly colleague, Justice David Prosser, has warned that
the use of attack ads in high court races will have a major effect on
the dispensation of justice in our state.
"If a judge is required to defend himself or herself in each
individual case, they are going to know what the sensitive cases are and
rule not on the facts, but on what the public reaction will be," he said
after the April 1999 court election.
An illustration of his point came as early as 1967, when then-Chief
Justice George R. Currie was defeated for reelection, reportedly because
of his participation a year earlier in the court's anti-trust decision
that allowed the Braves baseball team to leave Milwaukee and the
state.
Justice Currie, however, was the last sitting member of the court to
be defeated. Whether a justice is first appointed or elected to the
Wisconsin Supreme Court, incumbency becomes a strong factor in
subsequent elections. Since 1853, when the first justices were elected,
only five incumbents have been unseated.
Rep. Mary Hubler, U.W. 1980, has represented the
75th assembly district since 1984. |
Finally, low voter turnout is routine for the spring nonpartisan
elections, and 1999 was no exception. Just under 20 percent of the
state's eligible voters went to the polls on April 6. Of those who voted
on election day, about two-thirds cast their ballots for Chief Justice
Shirley Abrahamson. That means she won this election by receiving
electoral support from just one out of eight of those eligible to
vote.
Each of these factors - high spending, incumbency, and low voter
turnout - pushes our supreme court campaigns farther away from our
long-standing tradition of clean and open judicial elections with
virtually no special-interest influence.
When our state's founders drafted Wisconsin's Constitution, they
could not have anticipated the technological excesses that dominate our
electoral process today. Unless we take action, we run the risk of
allowing these processes to distort and trivialize and erode the ability
of our highest court to carry on the vital task of defending our
constitution.
Wisconsin Lawyer