February 10, 2012

Justices Crooks, Bradley: Time to consider merit selection

Wisconsin Supreme Court Justice Patrick Crooks.

Wisconsin Supreme Court Justice Ann Walsh Bradley.

Citing the negative role of money in judicial campaigns, two Wisconsin Supreme Court justices are calling for the state to consider ending direct elections of court members, in favor of some form of merit selection.

“I really think it’s time to take a look again,” Justice Patrick Crooks said in an interview with the Wisconsin Center for Investigative Journalism, in his first public comments on the issue.

Crooks, the court’s third longest-tenured member and considered its most centrist, has in the past defended the current system of electing Supreme Court justices. What has “changed the balance,” he said, is the amount of money being spent on Supreme Court elections and the internal problems this has created for the court.

“The whole money issue has in my opinion really affected the view of this court and our relations with each other,” Crooks said in the interview Wednesday.

Crooks’ sentiments were echoed Friday by Justice Ann Walsh Bradley, second in tenure on the seven-member court. Bradley said she remains committed to “a fair and independent judiciary,” but that her thinking on merit selection has evolved, to where she agrees with Crooks that it warrants further consideration.

“I continue to favor election of justices but now I qualify that,” said Bradley, who also has previously defended the current system of electing justices. She favors changes in how the court operates “to repair the elective methods through meaningful and constitutional disclosure rules and meaningful recusal rules,” but isn’t sure this will happen.

“Without that repair,” Bradley said, “I’m concerned that an elective process isn’t one where the people are really being heard, that their voices are being drowned out by special interests.”

The court’s remaining five justices did not respond to requests for comment on Friday afternoon.

Crooks noted that Supreme Court elections once involved relatively small sums. But in recent years, “the huge amounts being spent on Supreme Court elections clearly provide a tension on this court, and surrounding this court.” He added that much of the money now comes from outside sources.

In the most recent Supreme Court election, in April 2011, incumbent David Prosser and challenger JoAnne Kloppenburg spent a total of nearly $1.3 million, while outside special interests poured an additional $4.5 million into the race, according to the Wisconsin Democracy Campaign, a nonpartisan watchdog.


A better process?

Merit selection, in which panels cull qualified judicial applicants, has been championed as a way to remove special interest spending from the process. But it has been criticized as anti-democratic, in that it reduces or eliminates voter input. In Wisconsin, state Supreme Court justices are elected to 10-year terms. Bradley’s current term expires in 2015, Crooks’ in 2016.

Wisconsin is one of 22 states that directly elect Supreme Court justices, according to the American Judicature Society’s Hunter Center for Judicial Selection. Five states pick judges through legislative or gubernatorial appointment. The remaining states use some form of merit selection, including 12 states in which voters get to decide whether appointed justices should be retained.

Crooks expressed particular interest in a system that couples merit selection with a retention process.

“I’m not suggesting that we should eliminate judicial elections in Wisconsin,” Crooks said. “You can continue to have the same process of election that we have now for circuit judges and appeals court judges, but I think maybe we should be taking a look again at Supreme Court elections.”

Crooks praised state Sens. Tim Cullen, D-Janesville, and Dale Schultz, R-Richland Center, for “stepping up to have the Legislature take a good look at this.” Last September, the pair introduced a joint resolution to amend the Wisconsin Constitution to make Supreme Court justices and state appeals court judges appointed rather than elected.

“The divisiveness on the Supreme Court right now certainly lends urgency to our desire to change the way we select our justices,” Schultz said in a press release last July, when the resolution was proposed.

Changing the state constitution requires that the Legislature pass a joint resolution in two consecutive sessions and for the amendment to be ratified by voters. The joint resolution was referred to the Senate Committee on Judiciary, Utilities, Commerce and Government Operations, from which it has not advanced.

Last July, a survey conducted for Justice at Stake, a Washington, D.C.-based nonpartisan watchdog group, found that only 23 percent of Wisconsin respondents favored moving to this system, while 59 percent were opposed.

The same survey also found that just 33 percent of respondents approved of the Wisconsin Supreme Court, down from 52 percent from three years earlier.