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.

Comments

Corrupting the Courts

Can we talk about checks and balances? The rule of law?

On July 16th, the Wisconsin Supreme Court overturned that state’s limits on money in politics, and handed Scott Walker a significant political victory as he began his (thus far pathetic) campaign for the White House.

If the case had been argued and decided on legal principles, it would be unremarkable, no matter how unfortunate “good government” advocates might consider the consequences. But it wasn’t. Walker’s victory was political, not legal. As Lisa Graves, Executive Director of the Center for Media and Policy, explained in the wake of the decision,

“The dark money groups that bankrolled the Walker team’s recall victories got the decision they wanted from the justices they swept into office with their spending.”

Defenders of judicial elections point out that it is impossible to remove politics from other methods of judicial selection, and that is certainly true. But those processes–like the one we follow in Indiana, where a panel of lawyers “vets” candidates and sends three names to the Governor–do not involve the obscene amounts of money and the blatantly political motivations that characterized the Wisconsin high court election.

The Wisconsin Club For Growth and Wisconsin Manufacturer’s and Commerce, the organizations that brought the lawsuit, spent $3,685,000 supporting Justice David Prosser in his 2011 race (five times as much as the Prosser campaign itself). The election was decided by just 7,000 votes. Anyone who doubts that expenditures at that level were meant to “buy” judicial outcomes is living in a fantasy world.

In Wisconsin, what that money bought was an elimination of checks and balances, ensuring that the judicial branch would roll over and play dead when faced with corrupt activity by the executive.

“It comes as no surprise that a court elected with $10 million in support from the same dark money groups under investigation would overturn years of precedent and open the door to unlimited secret funds in Wisconsin elections, fully coordinated with candidates,” said Brendan Fischer, General Counsel of the Center for Media and Democracy.

The groups challenging the probe, Wisconsin Club for Growth (WiCFG) and Wisconsin Manufacturers and Commerce (WMC), allegedly coordinated with Walker and were parties to the case, and also among the top spenders on Wisconsin Supreme Court elections.Justices Michael Gableman and David Prosser were both elected to the court by narrow margins and with huge expenditures by WMC and WiCFG, yet declined a motion from Special Prosecutor Schmitz to recuse themselves from the case. In court filings, Walker’s lawyer also argued against the recusal motion.

In Wisconsin, partisans used judicial elections to buy the result they wanted. In Kansas, where the courts recently invalidated an administrative change desired by the state legislature, the legislature has threatened to defund the judicial branch. 

And of course, we have candidates for the highest office in the land supporting the right of a county clerk to ignore the highest court in the land.

Rule of law, anyone?

Comments