Justice

The case for biased judges

It appears the latest Wisconsin Supreme Court election is heading for a recount. Unless the initial vote count is found to be inaccurate, conservatives will add to their majority on the state’s highest court.

It’s hard to see how liberals and centrists will gain enough of a foothold in future elections to begin climbing out of the hole they’re in without wholesale changes in the way they campaign for seats on the high court. Right-wingers are far better at it.

So the Republicans control our courts. I know, I know, state Supreme Court elections are officially nonpartisan. But they are nonpartisan in name only. They are partisan in every way that matters.

Republicans won their majority on the state Supreme Court by defining what these elections are about and framing the debate in terms that are advantageous to them. They made a series of recent elections all about being tough on crime, despite the fact the Supreme Court is not a trial court and does not try or convict or sentence criminals. It is an appeals court that deals mostly with civil cases, not criminal ones. Still, Republicans made it clear which candidates were tough on crime (theirs) and who was soft (the Democrats). In election after election, Democratic-backed candidates walked into the trap. They didn’t seek to reframe the debate to focus on who’s smart on crime and who’s dumb. They just gamely tried to appear tough too.

Mostly, Democratic-backed judicial candidates claim to be neutral. They insist they’re nonpartisan when all evidence plainly suggests otherwise. Their core message and their answer to just about every question is that they’ll be fair and impartial if chosen for the bench. Neutral is not interesting. It’s not appealing. It’s not even honest.

We all have biases. We all have deeply held values and we all have our own world views. Those seeking our permission to judge owe us an honest description of their beliefs and a clear explanation of their judicial philosophy.

In this most recent Supreme Court contest, Republicans made the judicial equivalent of a jihadist electable by making the election about protecting religion. They put themselves on the side of faith and characterized their opponents as hostile to spirituality. Democrats and their candidate stayed neutral, droning on about being fair and impartial.

Justice is supposed to be blind. It’s clearly not. Color is seen in court. Privilege is recognized and protected in court. The wealthy and well connected have one kind of experience with our justice system. The poor and powerless have quite another. Why won’t Democratic-backed judicial candidates say this? Equality is a bedrock American value, it’s a truth we hold as self-evident. Why won’t Democrats make this truth an issue in Supreme Court elections?

Republicans have no qualms about wearing their partialities on their sleeves. In one election, they look to corner the market on toughness by peddling a lock-em-up-and-throw-away-the-key approach to crime. In another, they practically lay claim to divine providence. We all grew up pledging allegiance to the flag — to one nation under God, indivisible, with liberty and justice for all. Why won’t Democratic-backed judicial candidates pledge allegiance to something more than fairness and impartiality?

Democracy is synonymous with America, justifiably or not. What’s stopping Democratic-backed candidates for our state’s highest court from declaring that they will act with bias in favor of democracy? With democratic principles under assault across our country, what’s stopping them from saying for all to hear that a judge’s highest duty is to protect and preserve the idea that the will of the people shall be the law of the land?