Will it stop the fighting?

The Wisconsin Supreme Court has been in the spotlight of late and often for the wrong reasons. Alleged chokings, fists raised, name-calling that would be more at home on a playground than a courtroom — that’s your court of final opinion, Wisconsin.

We should demand more of the learned minds we have elected. We should expect more of the adults who are deciding if our laws are constitutional.

For 150 years, Wisconsinites have elected Supreme Court justices with little fanfare. I wouldn’t be surprised if most people considered this non-partisan decision as a throw-away, made in the privacy of the polling booth, picking the most familiar name. But in the last four elections, the Supreme Court race has become as heated as any partisan office in this state. Money, outside PACs and transference of legislative issues onto court candidates have made for heated races.

Now in light of the bickering and the last two contentious court elections, two state senators, Tim Cullen (D-Janesville) and Dale Schultz (R-Richland Center) are proposing a constitutional amendment to have the governor appoint Supreme Court and Appellate Court judges.

Under the plan, which they hope can get initial approval by the Legislature this fall, governors would choose a Supreme Court justice from a list of candidates recommended by a non-partisan selection committee. Schultz and Cullen said past Supreme Court elections, which have cost more than $6 million each, force the justices to side with groups who helped elect them. They also said the current bitter 4-3 split on the Supreme Court illustrates why their proposed change is needed.

Cullen and Schultz discussed their plan with Steve Walters, senior producer of Wisconsin Eye on Tuesday afternoon.

The plan would involve a selection committee which would interview and provide a list of five or six qualified candidates to the governor. The governor would select one as his (or her) pick for the Supreme or Appellate court and forward that to the senate, which would have confirmation powers. The process is very similar to how U.S. Supreme Court Justices are selected, with the exception of having a non-partisan committee doing the vetting of candidates, not the president.

The proposed amendment would have to pass two consecutive legislatures and garner a majority vote by the public before it would take effect. The earliest Supreme Court election this could effect would be incumbent Justice Patrick Crooks in 2015.

Schultz and Cullen noted that in the state’s history, 45 out of 86 Supreme Court justices have been appointed by the governor due to vacancies created by retirements or death. In that regard, the idea of appointing justices is not unprecedented.

“In over half the cases, judges have been appointed with only the governor’s judgement,” Cullen said. “No oversight by the Senate, then these judges run as incumbents. In the years running up to their elections they line up former governor’s on each side of the aisle, all the sheriff’s and roll into their first election like they are an incumbent. We’re saying that system doesn’t give the voters a choice, since the incumbent was chosen by the governor.”

Of the 45 justices that have been appointed by the governor with no oversight, only two have been removed from their seats by the voters – Justice Louis Butler in 2008 and Justice George Currie in 1967. It has been said Currie lost re-election because he tipped the majority opinion which said the Milwaukee Braves had a legal right to move to Atlanta, raising the ire of devoted baseball fans.

Schultz said they are using the amendment process to give the citizens a say in how Supreme and Appellate judges are chosen.

“They can either maintain the status quo or do something different,” Schultz said.

Cullen said members of the public who spoke to him over the Fourth of July weekend were supportive of the idea to appoint justices, as were Schultz’s constituents. Those who have expressed doubts said public financing or restrictions on third-party money would improve the caliber of candidates for the bench.

However, public financing for Supreme Court elections ended with this past legislative session and the freedom of third-party money has been upheld by the U.S. Supreme Court in the Citizens United decision.

Both senators agree that the main problem with judicial elections is the influx of third-party money. In the last four Wisconsin Supreme Court elections, over $19.2 million in spending was tracked by the Government Accountability Board, which did not include all of the third-party money. It is a sentiment that even retired SCOTUS Justice Sandra Day O’Connor noted in a 2010 speech in Madison.

“The health of our judiciary is intimately tied to how we choose our judges,” O’Connor said. “How can people have faith in the system when such large amounts of money are used to influence elections? ”

Cullen said the increase in money in court races makes him question the impartiality of the court.

“I no longer trust the court on the merits of the law,” he said. “I know that sounds pretty inflammatory, but if I was appearing in a case before the Supreme Court and my opponent had spent a tremendous amount of money on one of the justices, I wouldn’t feel comfortable with that court.”

“The judiciary is to interpret the law, not to make law,” Schultz said. “With all the money in the races it encourages justices to be activists on both sides. This puts into play was the decision is based on who gave what or spent money on their behalf. Can we survive in this country when people know that incentive is there? ”

Neither legislator felt the amendment could stop rancor on the court, but it may eliminate the personal attacks and angst that have increased with elections.

As for the selection committee bringing more, not less politics into the judicial selection process, Cullen said nothing is perfect.

“If we pick a committee of people with great credibility, even if they have partisan backgrounds, serious people will go a long way toward taking the politics out,” he said.

Schultz added that this type of check and balance – a selection committee, gubernatorial appointment and senate confirmation – isn’t there now and didn’t see how having these in place would make it more political.

The details of the selection committee, length of terms or what would happen when a justice’s term is up are not set in stone, according to Schultz. Instead he and Cullen want to allow for input on the committee make-up and which courts the amendment would apply to from their legislative colleagues and citizens.

What do you think?  Is it time to change how we elect justices in Wisconsin? Is this amendment the way to do it?

Contact Sen. Schultz at (608) 266-0703 or at Sen.Schultz@legis.wisconsin.gov or Sen. Cullen at (608) 266-2253 or at Sen.Cullen@legis.wisconsin.gov.