Story originally printed in the La Crosse Tribune or online at www.lacrossetribune.com
Published - Saturday, May 10, 2008
Special-interest money threatens an independent judiciary
Retired U.S. Supreme Court Justice Sandra Day O’Connor recently brought an urgent message to audiences in Minnesota and Wisconsin: Keep the judiciary independent.
Her concern was third-party special-interest groups launching de-facto partisan attacks on judicial candidates. And she mentioned Wisconsin specifically.
Here, we have had two consecutive years of special-interest groups spending more money than the candidates themselves — and dominating the debate with misleading ads.
In the last Wisconsin Supreme Court campaign, Wisconsin Manufacturers & Commerce ran a series of ads supporting Burnett County Judge Michael Gableman, who defeated incumbent Justice Louis Butler.
The WMC ads portrayed Butler as being soft on crime and also criticized him for a favoring a plaintiff in a product liability case involving lead paint in a house.
Gableman himself ran an ad that had Butler’s face next to the face of a rapist that Butler had represented as a public defender, before he became a judge.
The implication was that it was wrong to be a defense lawyer.
Liberal groups, which ran ads just as misleading, lined up behind Butler. One, the Greater Wisconsin Committee, showed Gableman’s face on a bobble-head doll.
The whole effort was disgusting and misleading, and cost about $6 million in advertising from the candidates and the interest groups.
Speaking Wednesday in Milwaukee, O’Connor spoke out against what she called the “avalanche of advertising money” spent by special-interest groups in judicial campaigns.
“Often, these ads misrepresent the facts and scare voters by talking about criminal, not civil, cases, and everything is subordinated to a sound byte,” she said. “It’s important that the judiciary be completely independent. Unfortunately, three-fourths of Americans are not familiar with this concept.”
Minnesota has not yet had big-money special-interest judicial elections. But there is enough concern about it that some Minnesota legislators are thinking about switching to a merit system, in which judges are appointed but must face the voters periodically in retention elections, in which voters decide whether to keep them or reject them. If the judges are voted down, then another judge would be appointed.
Minnesota State Sen. Ann Rest, a Democrat from New Hope, said, “We are doomed if we get into those kinds of elections.”
Here in Wisconsin, it’s not exactly clear what could be done about the problem — short of switching to merit selection. It’s possible to institute public financing for judicial elections, but that wouldn’t solve the problem of the special-interest groups drowning out the message of the candidates themselves.
It’s also possible that candidates could be given additional money if they face well-financed interest groups, but such plans are expensive.
O’Connor likes the merit selection system, and encouraged judges in Minnesota to avoid accepting special-interest money.
The “appearance of outside influence on judges has to be avoided,” she said. “Judges should not be competing against each other based on the popularity of their decisions. Judges are not ordinary politicians. Their job is not to interpret the will of the people.”
Is merit selection the answer? O’Connor believes it is. But Wisconsin officials should first take steps short of that — including public financing — to help change judicial campaigns.
If those steps don’t work, then merit selection might be the ultimate solution. But we don’t know that yet.
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