Originally posted on the Faculty Blog on November 3, 2008.
I was extremely lucky to represent Marquette Law School this past Saturday night at the Wisconsin Equal Justice Fund’s Howard B. Eisenberg Lifetime Achievement Award Dinner, and the highlight of the event for me was not only my opportunity to meet and take a picture with Justice Louis Butler, but also to hear him present the Lifetime Achievement Award to Judge James A. Gramling, Jr. However, there were two things about Justice Butler’s speech that caught my attention. First, he began his speech by saying, “I’m Justice Louis Butler, and I’m not under investigation for anything.” Now, granted, this was an audience that had given him a thunderous standing ovation on his way to the podium, so he was certainly in the right crowd to make that joke. Nevertheless, it surprised me how eagerly everyone in the room applauded him; it certainly didn’t feel as though it was merely humoring him. Second, and perhaps more importantly, his tribute to Judge Gramling touched repeatedly on the Judge’s insistence in doing the right thing regardless of its popularity or public perception, both in his personal life and in the law.
As a result of those, I began to think again about the past judicial election, in which Butler lost his seat on the Wisconsin Supreme Court by about 20,000 votes to Michael Gableman. To summarize for those who didn’t follow this story in the news, Gableman attacked Butler with a flood of negative advertising, including one ad in which he suggested that Butler found a loophole that allowed a rapist to go free and molest another child. This was effective in getting Gableman the victory, but the “loophole” ad in particular has since been proven to be misleading, resulting in the appointment of a panel to review whether sanctions and/or impeachment is necessary. Of course, as we’ve seen in this presidential election, attack ads are nothing new. But somehow it feels different when it’s a judicial election, and particularly so when the attacks are as misleading as these were. And yet, at the same time, it’s almost shocking in that it doesn’t surprise me anymore (and I’m the same person who was heartbroken when the first McCain attack ads started rolling!). Hence, it begs revisiting the old question: is it better to appoint judges or to elect them?
There have been a wealth of studies done on this subject; a quick Google search on the topic turned up academic papers on the matter here and here. The general consensus in these papers can be summed up in arguably my favorite quote from the first link:
In particular, electoral systems would seem to attract politicians, while appointment systems are more likely to attract professionals. Politicians want to satisfy the voting public, and this might mean deciding cases expeditiously and in great number. Professionals are more concerned about their reputation among other lawyers and judges, and are more interested in delivering well-crafted opinions that these others will admire.Now, not all elected judges aren’t partisan hacks or ideological puppets. In fact, while lawyers will inevitably complain about this judge being too lenient or that judge being too strict, I’ve never heard any accusations that any of the judges I’ve seen are simply fulfilling some political mandate. Furthermore, there’s a lot to be said for judicial accountability to some degree; if a judge is giving disproportionately lenient or harsh sentences, or is acting with disregard for rules of evidence or procedure, I believe that that judge should be forced to answer for his or her decisions.
But despite all that, the fact that it is now noteworthy when a judge makes the right decisions even when they are unpopular speaks volumes about the fatal flaw of an elected judiciary. When judges need to be repeatedly re-elected, we’re going to see them err toward the side that bolsters their future candidacy, even when it’s not the right decision. After all, no one ever lost an election for being “tough on crime,” and to do otherwise in our era of instant information is tantamount to political suicide. But the other — and perhaps far worse — problem is that situations like the Butler-Gableman election are going to inevitably sour some brilliant legal minds from seeking a place on a judiciary that would benefit greatly from their presence. How many public defenders are going to try for seats on the bench when they see what’s happened to Butler? Could Supreme Court justices like Louis Brandeis and Thurgood Marshall have survived the election gauntlet? If Earl Warren hadn’t been life-appointed, would he have made it through the election cycle past Brown v. Board of Education without Eisenhower trying to throw him off the bench?
The greatest decisions of our nation’s history have come when a judge has stood up and said, “I don’t care what the people say; this is wrong, and we need to do something about it.” But our system makes the judiciary a “king of the hill” game, where judges need to glad-hand and tout the things people want to hear in order to get on the bench, then need to do enough to keep the people happy so that they can stay there. If we ask the people to vote on judges — at least when it comes to positions like the Wisconsin Supreme Court — we have to expect the kind of partisan maneuvering that is present in any other election. And where does that leave us? With a brilliant and eloquent legal mind off the bench, a new justice being sworn in while facing potential impeachment, and a black eye for the Wisconsin judiciary.