Dirty dancing in the high court

Earlier this month, the Wisconsin Supreme Court split 3 to 3—along unambiguous partisan lines—over an ethics case involving their colleague. The now infamous campaign attack ad by Justice Michael Gableman was judged by one side as a lie, plain and simple, and a clear ethics violation; the other side claimed that the ad, while ‘distasteful,’ was protected speech. The sides could not even agree on how to proceed.

Faced with this deadlock, the Wisconsin Justice Commission decided to drop the case.

But the damage has been done.  In the aftermath of this circus, newspapers around the state describe the court as “fractured,” “ugly,” “divisive” and “dysfunctional.” Now on the faculty at the Marquette University Law School, former Justice Janine Geske recalls her own campaign to the state Supreme Court, and ponders just how far things have come.

“When I ran (in 1994; she retired from the court in 1998), it still was a time when most candidates’ goal was to get as much support as they could from both sides of the fence, have co-chairs who were Republican and Democrat, supporters who were both plaintiff and defense lawyers.” Judicial campaigns were organized “to give people confidence that you are a solid judge and you were going to be impartial.”

For Geske, the change began in 2007.  Now Justice Annette Ziegler and Linda Clifford ran against each other, and as she recounts, “all that money came in” from special interests. Geske knows and likes both women, and it’s with a note of sadness that she says that that the race “got personal.” In the end, she says, “it didn’t look like a Supreme Court race anymore.”

Of course, all over the nation, judicial elections have become more negative and partisan.  In fact, for what it’s worth, Wisconsin held out longer than most.  What’s more, judicial elections are just one manifestation of what Geske sees as a larger change in politics itself.  She laments the tone of contemporary politics, noting that in contrast to the classic image of the political statesman (for that is what most of them were), “there is now very little collaboration across party lines.”

And she speculates that the way that legislators handle issues may have had “a ripple effect” on the courts.

Regardless, this growing partisanship has now “hit the branch of government that we most want not to be partisan and divisive, but thoughtful and careful.” This history matters, because it shows that the money, partisanship and negative campaigning that characterized the campaign between Louis Butler and Michael Gableman was just the next logical step in the process. Like everyone else, she characterizes the Gableman television ad that led to an ethics suit as “so objectionable.”

But she refuses to pin all the responsibility on him. She repeatedly notes that special interests supporting the Butler campaign ran the first negative ad.  And in any case, more important than the blame is the end result: In sum, “this court has a mess on its hands.”

“People want to have a fair shot at court. They want to know that the judge is considering their issue and not to have a judge that has his mind made up before you walk in the door.” And that is precisely what is now at issue. Because even if justices are behaving as they should, “the perception is that justices are partisans. That perception is based on judicial campaigns. And that has really harmed the 3rd branch of government and people’s respect for the law.”

Of course, there are those who claim that what we have now is not so much bad as simply closer to the truth. In our postmodern world, objectivity and impartiality have been unmasked as fantasies. Crude, partisan politics is all there is and all there ever has been. At least now, they say, the fight is out in the open.

Geske knows this argument.  But she insists that just as there is a distinction between a judge and a politician, there is a distinction between partisanship and judicial philosophy. And she believes that a good judge will follow the latter even at the expense of the former. Geske recounts two cases that came up during her tenure involving gay rights. Her rulings were to affirm one and deny the other. From a partisan point of view, such an outcome makes no sense, but both were consistent with her judicial philosophy that the court must be conservative in interpreting, let alone overturning, the work of the legislature.

So is it possible to restore the public’s confidence? Can we affirm even the ideal of a fair and impartial jurist? Geske is circumspect. On the one hand, she supports the law passed in 2009 that establishes public funding for candidates running for seats on the state Supreme Court. There is no doubt that this law was a reaction to recent judicial campaigns, and she is hopeful that the opportunity for that kind of money “will give judicial candidates some independence from special interests.”

Geske also supports the law because it preserves judicial elections. Geske believes that justice works better when candidates for the bench are willing to go out and meet people. She also believes that elections are an opportunity to educate the public about what the court does and how it functions.  A judicial appointment process doesn’t give opportunities to people who are not politically connected.

She acknowledges that recent U.S. Supreme Court rulings raise constitutional questions about the public financing law. But constitutional questions aside, she has doubts about the law’s likely impact.

“There is going to be politics in any election.” But “races have so tainted people’s perception of the courts” that anything less than drastic change may prove ineffective. Things are so bad, that for the first time, she has even begun to consider giving up on judicial elections.  She still is not ready for an appointment system, but she admits that given the current state of affairs, she is “getting closer.”

Like the rest of us, she will be watching events unfold, hoping that the Court can once again find its bearings, and restores the public’s trust.