Should Judicial Candidates Be Muzzled?

Milwaukee County Judge Janet Protasiewicz. Photo courtesy of Janet Protasiewicz’ campaign

At least since the 1980’s, candidates for the U.S. or Wisconsin supreme courts have been admonished to say as little of substance as possible when they appear before a Senate committee, in the case of the federal court, or before the voters, in the case of the Wisconsin court. This lack of candor has been justified by an interest in keeping judges open minded.

This bias against candor by judicial candidates stems partly, I believe, from the Senate hearings on Ronald Reagan’s nomination of Robert Bork to the U.S. Supreme Court. The hearings were broadcast. I saw some of them and Bork was fascinating. A former law professor, Bork went into great detail describing his theories around the Constitution.

This turned out to be a bad idea from the perspective of his supporters. Bork’s theories seemed way out of the mainstream. Bork’s nomination was rejected by the Senate with 58 voting no and 42 voting yes.

As a result, judicial nominees since then have said as little as possible about how they would go about judging the “cases and controversies” that they would be asked to resolve. This vagueness has made it easy to mislead Senators as to their true beliefs.

According to an article in the New York Times, as a candidate for the U.S. Supreme Court then-Judge Brett Kavanaugh worked vigorously to reassure Senator Susan Collins that he was no threat to Roe v. Wade. The story reports that, according to notes kept by Senate staff members, he said:

“Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law. I understand precedent and I understand the importance of overturning it.

“Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences. I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.”

The Times article reports that West Virginia Senator Joe Manchin made much the same complaint about Neil Gorsuch, who made his own strong statements about adhering to precedent during his confirmation in 2017.

While open-minded judges are a good thing, prohibiting them from talking about their beliefs is no guarantee of open-mindedness. Consider the case of U.S. District Judge Matthew Kacsmaryk. He has made numerous decisions driven by right wing ideology, most famously banning the abortion drug mifepristone, which the Food and Drug Administration approved in 2000.

A Washington Post article reported that he submitted an article to a law journal, but then requested that his name be removed, asking the editor to substitute two colleagues at First Liberty Institute, a Christian conservative law firm as authors. Apparently, he feared that the article, which argued that “it is imperative that American health care laws provide robust conscience protections so that our medical providers may freely serve the sick, the dying, and the poor,” would hurt his chances of being confirmed as a federal judge.

All this makes him, and the Amarillo court where he is the only federal judge, a favorite of right-wing groups who can be assured of getting a hearing before a judge friendly to their perspective. Conservative groups have strategically chosen to file lawsuits challenging many Biden administration policies in Amarillo.

Having open-minded judges is a valuable goal. However, if the response to this goal is to discourage judicial candidates from disclosing their beliefs and opinions, the public is poorly served. As the Kavanaugh and Kacsmaryk cases illustrate, the response by judicial candidates may be to hide their beliefs. Rather than trying to eliminate anyone who is willing to discuss their values, it may be more useful to assess whether the person is willing to acknowledge the validity of opinions that conflict with theirs.

To take the Wisconsin Supreme Court as an example, based on the language in her opinions and dissents, Rebecca Bradley comes through as someone who believes she knows the “truth” and is intolerant of anyone with a different view. Much of her ire has been directed at another conservative justice, Brian Hagedorn who is more willing to tolerate those with contrary views and more civil in his decisions.

Janet Protasiewicz, by being open about her values as a candidate, struck a blow for transparency. That the Wisconsin gerrymander is designed (or “rigged”) to assure that Republicans keep control of the Legislature is a fact, not an opinion. To deny that the gerrymander rigs the districts to favor Republican control requires one to ignore reality.

Here’s how a  dictionary defines gerrymandering: “to manipulate the boundaries of an electoral constituency so as to favor one party or class.” The current Wisconsin legislative districts perfectly fit this definition.

Whether the gerrymander violates the state’s Constitution, however, is an issue for the Supreme Court to decide and Protasiewicz is careful not to go there. Not everything bad is illegal.

Defenses of the gerrymander favored by Republican leaders include the claim that the cause of the Republican advantage is due to weak Democratic candidates. That theory cannot explain how Tony Evers could comfortably win the popular vote in the race for governor while winning less than 40% of Assembly districts, as last week’s column documented.

A second claim is that Democrats lose most of the districts because they are concentrated in Milwaukee and Madison, while Republican voters are more spread out. In this view, the Republican advantage is forced on the mapmakers by the need to satisfy the other requirements such as compactness or respecting existing boundaries between governmental units, such as wards, cities and towns, and counties. A website called Dave’s Redistricting throws light on this theory. It has rated thousands of redistricting plans, proposed and adopted in every state, using five measures:

• Splitting governmental units
• Compactness
• Minority representation
• Competitiveness
• Proportionality

The table below shows scores for two maps. The second column scores for the current Wisconsin Assembly map, which was adopted in bill SB621. The scores run from zero to one hundred, which is the best possible score. The bigger the score the better.

The third column shows scores for a map (called “WI State House Fair”) deliberately designed to be perfectly proportional. That is, Democrats would gain the same number of seats if they won a certain number of votes as would Republicans if they won the same number of votes. On each of the other four measures, the perfectly proportional map scored higher than the gerrymandered map adopted by the Supreme Court. In other words, by rigging the map, its creators worsened it across the the board, also splitting more districts, making them less compact, less representative for minorities and less competitive.

For Protasiewicz to acquiesce to calls to recuse from defenders of gerrymandering would be a step backwards in more ways than one, discouraging judicial candidates from a frank discussion of issues, and perhaps dooming the effort to create fair maps.