When Janet Protasiewicz was sworn in as a justice of the Wisconsin Supreme Court on Aug. 1, I was greatly pleased and greatly saddened at the same time.
During the campaign for the court, which ended with her April victory, it was rather clear that she supported abortion rights and opposed extreme GOP gerrymandering of legislative seats. It also became apparent during the contest, in which opposing sides spent nearly $50 million, that her opponent was firmly on the other side of those issues.
Her election gave the court a progressive majority, but the politically charged campaign made it appear that judges are nothing more than politicians in black robes. The spectacle certainly would not instill public confidence in the impartiality of the state’s judiciary. It did not help that progressive litigants immediately began teeingseveralr of hot-button issues to bring before the new four-person majority. Since the flip, the court has been in a state of turmoil, largely instigated by the three-person minority.
Partisan elections for North Carolina’s high court last November flipped the majority from Democrat to Republican, which has also made that court appear to be a political football. The new GOP majority promptly reversed recent Democratic decisions that struck down an extreme GOP gerrymander and an oppressive GOP voting law. It was enough to give Tar Heel voters a severe case of political whiplash.
A recent column from across the pond raises an interesting question — why do U.S. states elect judges? That question has puzzled me since taking office on my state’s high court in 2005.
A judicial office does not lend itself to the electoral process. The Model Code of Judicial Conduct, which has been adopted in some form by most states, does not contemplate that judicial candidates will say much to voters, except that they are great candidates with great credentials. As in most states, Canon 4 of Idaho’s Code says judicial candidates “shall not … make pledges, promises, or commitments” on issues that are likely to come before the court. None of the candidates in the recent Wisconsin and North Carolina elections seems to have been acquainted with this important canon.
The method of selecting judges varies among the states. Significant differences exist between selection methods for high courts and lower courts. The Brennan Center for Justice’s judicial selection map shows about 26 states use judicial nomination commissions for initial appointments to high court positions, where the governor usually appoints from among the nominees. Where the commission members are insulated from political influence, this system generally results in the highest level of competence and independence of appointees.
Nonpartisan elections are used for high court positions in 14 states, but some of those states, like Idaho, use a nominating commission to fill vacancies occurring during an elected term. Partisan elections are used in eight states, like North Carolina, and are the most problematic. They can produce no-holds-barred political campaigns that bring the judiciary into disrepute. Nonpartisan elections, like in Wisconsin, can degenerate to the level of partisan elections.
Idaho opted for the nonpartisan election of judges in 1931 and, to further remove its high court from the political arena, established a nonpartisan nominating commission in 1967 to fill mid-term vacancies. It just so happens that about 80 percent of high court judges retire during their term so that their positions can be filled through the nomination process. Very few trial court judges serve their entire term to ensure their vacancies will be filled by appointment. During the last 20 years, 4 out of 5 of Idaho’s high court judges retired during their term so that their positions could be filled through the nomination process. The system has produced a highly competent, politics-free judiciary.
I was one of the roughly 20 percent of Idaho’s high court judges who joined the court through the election option. I discovered that under the ethical restraints in Idaho’s code, there is not much a judicial candidate can say or do to rally support. There is a great temptation in a contested race to resort to using forbidden issues to garner votes, as happened recently in Wisconsin. Fortunately, it rarely happens in Idaho. It also became very apparent that the people best qualified for judicial positions are ill-suited for retail campaigning. The ability to run a slick campaign has absolutely no relevance to being a competent judge.
There have always been some scorched-earth judicial campaigns, but they have become more common in these politically charged times. The influx of massive amounts of dark money into political campaigns has begun occurring in judicial campaigns, as demonstrated in North Carolina and Wisconsin.
Efforts are also being made by political partisans to weaken nominating commissions and infuse them with politics. GOP extremists who control the Idaho legislature managed to tip the balance of our commission in their favor this year. They also attempted to effectively eliminate the midterm appointments of judges, which would require candidates to run in contested elections. The GOP platform calls for candidates to run on a partisan ticket. Similarly, moves are underfoot in other red states.
If the competence, independence and impartiality of the judiciary in states with judicial commissions is to be maintained, lawyers and users of the courts in those states must stand up for the courts. Otherwise, we will see judicial systems degenerate to the level of states where dark money and political-style campaigns wear away the rule of law.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.