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In the almost 4,000 years since Hammurabi codified Babylonian law, Western cultures have held judicial fairness and impartiality as an ideal. To be sure, it’s an ideal sometimes honored more in the breach than in the keeping, but it’s an unchanging ideal nonetheless.
Today, in Wisconsin, that ideal is under attack, from enemies both old and new.
Wisconsin elects its judges and elections mean donations and donations mean influence. The more money that flows into a judge’s coffers, the greater the chances that fairness and impartiality are at risk.
It’s critical for Wisconsin to reconsider the way judges are selected. The American Bar Association has advocated for merit selection since 1937. Merit selection, which is used in two-thirds of the states, relies on neutral experts and nonpartisan boards to select a qualified pool of candidates from which the governor can choose. In some states, approval of the senate also is required.
Under the system, judges must stand for retention after a determined number of years. The public is asked to vote only on whether to keep them. There are no competitive elections.
Alternately, the Wisconsin Bar Association has proposed a constitutional amendment that would limit justices to a single, 16-year term. According to WAB, the term limits would “engender greater public confidence in the court’s ability to pursue justice independently of political influence.”
We don’t think term limits are strong enough to solve the problem. Only merit selection upholds the ideal of blind justice.
Wisconsin’s already corrupt system has been further damaged by two high court rulings, one from Washington and the other from Madison.
In its Citizens United ruling, the U.S. Supreme Court ratcheted up brazen judicial bribery by removing limits on how much donors can contribute secretly to PACs to influence elections.
In Wisconsin, the problem is compounded by a state Supreme Court decision that campaigns can coordinate election strategies directly with dark money groups. The story of how such coordination became legal demonstrates how this kind of corruption works.
Several dark money groups were charged in a state “John Doe” case with illegal coordination during Gov. Scott Walker’s 2012 recall campaign. The same groups had given $8 million to four of the conservative justices on the bench.
So, when the case arrived at the high court, its outcome was a foregone conclusion. But the paid-for justices went further than anyone imagined they would. They not only dismissed the case against their donor, but ignored all legal precedent and tossed out the law banning such coordination. Then they ordered the evidence to be destroyed.
Why weren’t those justices recused from a case in which there was such a blatant conflict of interest? Just because, they said.
On April 5, with nearly four times the anonymous cash spent for her as for her opponent, Supreme Court Justice Rebecca Bradley won a 10-year term on the high court. Now the dark money groups have five-two control over justice in the state.
Money over merit: A majority of area lawyers said Bradley was unqualified. She’d never served on a judicial bench until 2012, when Scott Walker appointed her to a Milwaukee Circuit Court position. Last fall, following the death of Justice Patrick Crooks, Walker elevated her to the high court to finish out Crooks’ term, making her the incumbent in the election.
WiG is not alone in calling for reform. On April 5, 11 diverse towns in Wisconsin held referenda asking whether to amend the Constitution to undo Citizens United by declaring that money is not speech. Between 74 and 88 percent of voters said yes. That brought the total number of Wisconsin communities who’ve voted to nix Citizens United to 72. Forty-four percent of the state’s citizens live in those jurisdictions.
We need Citizens United to be thrown on the trash heap of history, and we must stop electing justices and appoint them on merit. Fair and impartial justice must not be negotiable.