Ideally, a judge should be more than a lawyer who knows a governor or a president. Realistically, judicial appointments are inherently political. Electing judges is problematic too, especially in the last decade as judicial elections have turned into auctions.
There’s another big problem with court elections these days. The campaigns almost never deal with what the judges elected to these offices actually do. Take the Wisconsin Supreme Court, for example. Since at least 2007, the major theme in just about every high court election has been crime. More specifically, who’s tough on crime and who’s soft on crime. Only thing is, the Supreme Court is not a criminal court. It does not conduct criminal trials. It does not sentence those convicted of crimes. It deals mostly with civil disputes, and the few reviews of criminal cases it handles focus on whether trial courts followed proper procedure.
No matter. Wisconsin’s 2007 Supreme Court election featured record-breaking, multi-million-dollar spending and most of the money paid for attack ads about either crime or alleged personal misconduct by the candidates. The 2008 contest was even uglier and more expensive, with misleading advertising almost exclusively about crime, including a Willie Horton-style smear invoking a rape case. Fast forward to 2016 and the latest race for a seat on the Supreme Court was heavily influenced by, you guessed it, mostly false advertising about crime.
The special interest groups that sponsor most all of this crime-related advertising in Wisconsin show little or no concern about public safety in their day-to-day work. They want to elect judges they can trust to be sympathetic to their actual concerns. They want to bend justice in their favor. They’ve found that the best way to do that is to play on the public’s fear of violent crime. And not just in Wisconsin. Across the entire country in recent years, corporate interests have made a concerted effort to stack courts with business-friendly judges. And they’ve repeatedly played the crime card from coast to coast to accomplish their aim.
Wisconsin will have another Supreme Court election next year, and the year after that and the following two years too. Here’s a prediction: The major theme of these upcoming election campaigns will be crime. Who’s tough and who’s soft. Unless, of course, a conscious effort is made to flip the script.
Heaven knows there’s been dishonesty in abundance in recent court elections. How about a dose of truth telling? How about a campaign that begins with an honest acknowledgement that money tilts the scales of justice and ends with a frontal assault on this corruption? How about saying out loud what everyone knows to be true, namely that winning in court depends far too much on having deep pockets, and then putting forward some ideas about how to make sure everyday people can get a fair shake in the legal system? How about talking bluntly about the misdirection wealthy interests have used to deceive the public, drawing attention to crime to distract voters from their true motives for packing the courts with their friends?
How about a robust discussion about how our society might get closer to the ideal of justice for all?
— Mike McCabe