Judges And Politics

American government operates through Separation of Powers–what we all (hopefully) learned in school is the division of governance into three branches: the Executive, the Legislative, and the Judicial.

The basic idea was that the legislature would pass laws, the Executive branch would enforce them, and the Judicial branch would ensure that both the laws and the methods of their enforcement were consistent with the Constitution.

It has always been more complicated than that, of course, but it is important to keep that basic framework in mind–especially the fundamental role of the judiciary. That role requires that judges be insulated from partisan politics to the extent possible–that they be free to decide cases on their merits. They may err, but the goal is to put on the bench people who will put aside their personal policy preferences and “call ’em like they (honestly) see ’em.” Even today, most do.

Partisans have always grumbled about the judicial branch. When a court strikes down a politician’s pet legislation, accusations of “judicial activism” are never far behind, and efforts to place partisan ideologues on the bench are nothing new. 

What is new is the degree to which partisans and autocrats are acting to politicize and capture the courts–and not just in the U.S.

In Israel, Netanyahu’s far-right administration has stirred up a hornet’s nest by advancing measures that would allow that administration to control the courts. In Hungary, Victor Orban has tightened his control over that country’s Courts.There are other examples, and they all threaten democratic accountability.

America’s Founders tried to insulate the federal judiciary from political pressure  by granting judges lifetime tenure.(People didn’t live as long back them, and thoughtful critics suggest that terms limited to 18 or so years could achieve the same goal.) Many states also employ judicial selection systems meant to minimize the influence of partisanship and politics –requiring local bar associations to evaluate nominees, and creating bipartisan judicial nominating commissions. These mechanisms do not–cannot–completely remove partisan politics from the process, but they certainly help.

The effort to minimize partisanship on the bench is consistent with the Founders’ effort to create a judicial system meant to check misbehavior by the other two branches. Both the legislative and executive branches were designed to answer to the voters; the judiciary was intended to answer to the Constitution and to keep the other branches tethered to the rule of law. 

Over the years, political activists and ideologues have succeeded in eroding that fundamental distinction between the branches by the simple expedient of judicial elections. 

When judges are elected, partisanship is inevitable. The current campaign for Wisconsin’s Supreme Court should be sufficient to erase any doubt. The candidates  have made no bones about their contending political ideologies:

Officially, the race is nonpartisan, but one candidate is closely aligned with Republicans and the other with Democrats. The state parties and dark-money groups are the biggest spenders in the race.
Milwaukee County Judge Janet Protasiewicz shored up Democratic support early in the race and easily rolled through Tuesday’s primary. She has said she backs abortion rights and condemned the election maps as “rigged.”

Conservatives were more bitterly divided, leading to a contentious fight for the other spot on the general election ballot. Emerging from the primary was Daniel Kelly, who was appointed to the state Supreme Court in 2016 by Gov. Scott Walker (R). While campaigning, Kelly — who lost his seat in a 2020 election — has touted his rulings to allow concealed guns on city buses and end the coronavirus lockdown imposed by Gov. Tony Evers (D).

Given how blatantly all four of the run-off candidates trumpeted their very different approaches to the law, it was ironic that conservative Kelly accused liberal Protasiewicz’s of  promising to “set aside our law and our Constitution whenever they conflict with her personal values,” while characterizing  his own ideological preferences as fidelity to the Constitution.

Protasiewicz has rebuffed such attacks, saying she isn’t prejudging cases but letting voters know her values. She has criticized Kelly for his rulings and the endorsement he received in 2020 from Donald Trump.

My interpretations of the Constitution and Bill of Rights are more in line with those of Protasiewicz, so–from an “outcomes” standpoint– I found the runoff election results comforting: (Protasiewicz had 46 percent of the vote, Kelly had 24 percent, and Protasiewicz won areas of the state that are normally heavily Republican.) 

That said, given current levels of American civic literacy and Constitutional knowledge, voters aren’t deciding which judicial candidate’s approach to the law is most consistent with the Constitution. Instead, they are encouraging the judiciary to identify with partisans in the other two branches–to choose a side.

If you don’t think that’s dangerous, think about Orban and Netanyahu.


  1. In WI and in other places, when everyone votes in the same pool, liberal thinkers have a real chance at victory. ONLY by restricting voting and such do the R’s have great power.

  2. It’s not surprising. The squabbling between those wanting power and those wanting to govern has always been there. Today, it’s Republicans lusting for power while they nakedly display their disdain for governing for the people.

    Netanyahu has lost what was left of his mind. He threatens to bomb Iran. Iran is a large supplier of Russian arms. What could possibly go wrong? Him stacking the courts is just a fly speck on the windshield of Armageddon.

  3. Did you notice that as soon as Netanyahu was elected that the bombings restarted? I wonder “is it a coincidence?”


  4. How often has D’s put up a vote for universal healthcare? How about removing external campaign donors from state elections, as happened obviously in Wisconsin for R’s?

    That would remove a powerful tool for the state elections.

    Financial resources are pooled in D.C. and state houses along with 100s and 1000s of lobbyists. Needless to say, many of those lobbyists end up serving in political administrations.

    Who makes the laws? And who do the laws represent?

    We’ll get a good taste of East Palestine’s disaster as the politicians and the EPA start pointing fingers. The lawyers (along with Erin Brockovich) are assembling and addressing the citizens with the facts.

    We’ll all see the discovery docs where the EPA took the word of Big Railroad, allowing the railroad to accumulate billions of dollars in profits at the expense of communities and workers in favor of executives and shareholders.

    When did we have impartial jurists?

  5. Squabbles between the executive and the judicial branch are not new. Think about John Marshall and Thomas Jefferson. But the squabbles today reflect special interests lobbying to pack the court with “safe” members. And it seems to work, unfortunately.

  6. Wait a minute! Tommy Tuberville said the three branches were the the Senate, the House, and the Executive. Are you saying that a US Senator was wrong? Okay, I’ll admit that Alabama might not really be a part of the union, but still? Never underestimate the ignorance of the American public. If you wonder how we got here, maybe the mirror would be the place to start.

  7. Sheila writes: “The basic idea was that the legislature would pass laws, the Executive branch would enforce them, and the Judicial branch would ensure that both the laws and the methods of their enforcement were consistent with the Constitution.”
    I’m nit picking. The role of the Judicial branch was not “a basic idea” until the Jefferson-Marshall incident, as mentioned by another nit-picker above.
    Secondly, the term “enforce” seems too strong. I would think “administer” fits better.
    Are these nits of consequence? Of course they are; otherwise I wouldn’t write about them.

  8. Let me pose a question,

    Yesterday I said that maybe this government should be ripped to shreds!

    I believe Abraham Lincoln said basically the same thing! If you don’t like the system of government you’re free to change it!

    And yet there are individuals who find that a step too far at the ledge of the precipice.

    I really love history because it shows all of the attempts humanity has made to find a more perfect bond of union! And in every case it’s failed miserably.

    We govern and live under a constitution that was written during a time of complete partisanship concerning gender and race, which has not changed one iota over the past 200 and some years.

    In some cases, it’s actually gotten worse because it is more clandestine and subvertive. But here we are, those who want to wave the flag and tout this government’s amazing qualities.

    “So, should we continue to festoon something rotten or should it be changed?”

    In one of my most favorite statements, Abraham Lincoln also said;

    “I am not found to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have.”

    Abraham Lincoln was truly a good man. He had his faults, but he also was an enlightened individual especially during his time. So he lived up to the light he had of that time.

    I also would like to pose the question, concerning individuals statements about evolution, when this government was nanessent, everything was still in flux, all of those individuals believed in creation! There was no theory of evolution. So, their thoughts and motives were skewed by their beliefs. So, was society better then? Or is society better now?

    Let’s see what light folks have about this system of things in its entirety from beginning till now!

  9. John, really good question. One meta-question though. What does better even mean? IDK.

    I think of human knowledge as mere reality of any times. The human urge to know more is relentless for its own sake not necessarily with any application in mind because each discovery is impossible to even predict the application of.

    We know what we know now. That’s our reality. It does make some uncomfortable mostly because it’s impossible to keep up with progress which comes in both good and bad flavors.

    A problem is that nobody knows all human knowledge, we collectively have no control of progress, and yet are faced with the reality of preparing for a future reality.

    I’d hate to be in our shoes.

  10. Pete,

    Think about it, back then we had slaves, today, we are still slaves. Back then they had the Boston tea party, the British government was taxing without representation. Today we are taxed without representation. Because those who write the tax laws, are the biggest receivers of campaign funding buy large entities that sometimes pay no taxes at all.

    Was there any lesson learned? Was there courage back then to revolt on taxation? Why did those brave Patriots dress up like Native Americans?

    It seems a bit cowardly, a lot of misdirection, instead of making a bold and concise statement. These Patriots hid behind the natives that they pushed to extinction.

    The government today, sent train cars loaded with weapons of war into the inner city train yards and tipped off the gangs or gang leaders to which cars held that stash of weapons, cars, tracks, car numbers!

    The same method was used in getting drugs into the inner cities, but not just by train, later on, there were mules paid to bring it into this country once the war in Vietnam stopped.

    Like anything, the amount of money to be had was alluring to all sorts of folks. And the genie was never put back in the bottle. Cartels were formed that had different interests than this government, so hence, International drug interdiction missions which furthered the distrust of those far-flung civilizations. Afghanistan was a prime example! The conflict with Russia and the United States was more about control of opium than terrorism.

    The Chinese see a perfect opportunity to collapse society by funneling fentanyl and other drugs into this country, something that they learned from the examples in American government.

    So, when we look back at it, was government worse in its necessant form? Or is it worse now?

    We have three supposedly equal governmental entities that make up the whole. The executive, the legislative, and the judicial! And to this very day, they couldn’t find their backside with both hands and a flashlight!

    An Authoritarian form of government would cut out some of the stagnation and get things moving. But then again, absolute power corrupts absolutely! So where would there be checks and balances? Authoritarianism has its uses, but Authoritarianism is not Anarchy! Some folks really are not familiar with history.

    So, thank you Pete, I remember when you first popped on this site, always insightful. And I appreciate you talking to and not at!

  11. Should the government be ripped to shreds?
    It is currently ripped.. Just ask the folks of Palestine Ohio.

  12. I have never served as an appointed or elected judge but have served in hundreds of cases as a pro tem judge (mostly in uncontested divorces) and as a special judge in matters ranging from First Amendment cases (police raids on “dirty” book stores etc.) to one where I was to decide whether to order an end to the local building of Ike’s interstate highway system on grounds of unconstitutional taking. Most nearly all of the cases where I sat as special judge were appealed and my holdings were for the most part approved at the appellate level.

    Like most people, I have had occasion to form likes and dislikes on the passing scene, so before taking the bench to hear evidence I tried my best to self-clear my mind of such biases and try to rule based solely on the admissible evidence and applicable law. I did not feel that I was correcting any mistakes of the other two branches in rendering an opinion in a particular suit. I thought in practical terms of doing justice to the parties involved based on the evidence and applicable law and not the tripartite political philosophy of a Madison or a Jefferson or a Marbury- renowned Marshall, the preserve of law professors, as opposed to the trenches where trial judges serve, and where the rubber meets the road.

  13. Squabbling about the court has probably always existed, but I do remember, in my lifetime, when Congressman Gerald Ford, who was a far-right congressman from Michigan’s bible belt before he was President, wanted to impeach William O.Douglas because Ford disagreed with his opinions.

    Still, things changed when the Republicans learned that appointing the likes of Justice Warren was troublesome and they got very good at finding and appointing ideologues, and even looked for youth to ensure long tenures. Although the Democrats were disappointed with Justice White, they still tried to find “consensus” appointees, never “too liberal” and the court drifted to the right. Trump put that on steroids.

    Sadly, Sheila points to a bad trend, with Orban in Hungary, and Netanyahu perhaps putting an end to what had been only the second democracy in the Middle East. Of course, Erdogan already messed up Turkey, so soon there may be none.

    Still, if the “left” starts to match the “right” in caring about the courts, we may achieve some balance and return to the rule of law, with Justices actually recusing themselves when their appointment was given by the father of the man they are anointing as President.

  14. Ian,

    Decent infrastructure would have prevented some of this, unfortunately, what’s best for the American people, what’s best for this country’s civil society and citizens doesn’t usually matter a whole lot. Somehow, things have become skewed. Somehow the politicians became the bosses and everyone else became subservient.

    This country’s politics is based on banditry, and bandits never go after the wealthy, the easier Pickens are everyone that happens to be treading water trying to survive. They will suck the last breadcrumb out of your mouth.

  15. Tommy T. is a farce, and Alabama is hardly a bastion of an educated populace.
    Personal points of view, and SCOTUS have not been strangers, but the role of
    the former seems to have become overwhelmingly present in Trump and McConnell’s
    version thereof. McConnell has been interested in nothing but gathering power for
    what seems to be all of his career.

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