Saturday, April 9, 2011

David Prosser is old

So it looks like David Prosser won that contentious Supreme Court election in Wisconsin and will get to serve another 10 years on the Wisconsin Supreme Court.

Or will he?  Prosser is 68-years old, an age when most people are retiring—not signing up for another ten years of work.  No doubt Prosser will show up for work in August, when his next term starts.  But will he last the whole ten years?

Doubtful.  My guess is that he will retire in a couple years so that Republican Governor Scott Walker can replace him with another Republican -- another Republican who would then run for reelection with the nearly all-powerful mantle of incumbency.  (Though who knows—Chief Justice Abrahamson was reelected at age 75 in 2009, and there are no indications that she's considering retirement.)

This is not some devious plot.  It is par for the course.  Indeed, it's how Prosser got his seat on the Court in the first place.  An open seat in a judicial election—especially for the highest court—is a very rare event.  Usually a vacancy occurs mid-term, either because a justice gets elevated to the federal bench or because a justice retires, and the vacancy is filled by an executive appointment.  

This highlights one of the weaknesses of selecting judges by election: in practice it is usually indistinguishable from a system that selects judges by executive appointment, except that the executive-appointment systems usually have some method for ratifying the the executive's choice.  Even in states with judicial elections, most judges still ascend to the bench by appointment.  Often, as in Wisconsin, these mid-term appointments are entirely within the executive's discretion—that is, the Governor gets to appoint whomever he or she chooses, and the choice does not need to be ratified by the legislature.  Then, once benchified, it is very, very rare for a judge to be defeated in an election.  In many cases, as in Wisconsin, the judicial elections are "nonpartisan," so the only information the ballot conveys to the voter is (a) the candiate's name and (b) which of the candidates is the incumbent.  Unsurprisingly, voters tend to choose the candidate who is already a judge.  The end result is a bench that is staffed by political appointees who never even had to face a ratification hearing and who then get rubber stamped by a clueless electorate.

And when the electorate doesn't rubber-stamp the executive's selection, it's often because of issues that we'd probably prefer not to intrude upon judicial elections.  The KloppenProsser election is a good example: at best, it was a proxy battle being waged over pure politics; at worst, it was an effort to affect the outcome of a particular case (the legal challenge to the collective bargaining bill, which is sure to reach the Supreme Court).  Either way, it's beneath the ideal of what a judicial election ought to be about.

What should a judicial election be about?  In my view, it should be solely about judicial philosophy.  For example, the campaign to "unretain" the three justices who joined the Iowa Supreme Court's unanimous decision overturning the state's law banning same-sex marriage was at least focused on an issue of judicial philosophy: restraint versus activism.  You can argue the merits of the issue all day long, but at least it was an argument about judging.  Unfortunately, those are not the kind of issues being argued about in the recent Wisconsin judicial elections.

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