Wisconsin’s Coronavirus Election Focused on its Hotly Contested State Supreme Court

Wisconsin’s election last week grabbed national headlines due to partisan battles over opening polling places during a pandemic, but followers of Wisconsin politics suggest the crucial partisan divide was over the state Supreme Court. “[T]he battle over the court is the reason that the GOP defied pleas to postpone the vote: Republicans calculated that holding the election in the midst of the pandemic gave incumbent conservative justice Dan Kelly a better chance of holding his seat,” according to veteran commentator Charles Sykes writing in Politico.

The winner of last week’s election, however, was liberal challenger Judge Jill Karofsky who beat incumbent Kelly by 10%, thus reducing conservatives’ edge on the court from 5-2 to 4-3.

Although Wisconsin Supreme Court elections are nominally non-partisan, the usual Red and Blue teams routinely dominate. As Sykes puts it, “While the election of judges is technically nonpartisan, over the past two decades all pretenses have been dropped, as the races have become high-stakes proxy battles between Democrats and Republicans. Spending on the current campaign between Kelly and progressive challenger Jill Karnofsky topped $8 million and, following the pattern of recent elections, the contest was both intensely ideological and personally bitter.” And: “During the campaign, Karnofsky, who is running as an advocate of ‘social justice,’ accused Kelly of ‘running his Supreme Court campaign out of the Wisconsin GOP headquarters,” and noted that he was touting the support of President Donald Trump.”

Other than coronavirus, this Supreme Court race “in most other respects resemble[d] those before it: intensely partisan, even though its nominally nonpartisan; awash in campaign spending; and high-stakes for the ideological balance of the court,” observed Riley Vetterkind in the Wisconsin State Journal. These elections first turned boisterous in 1999, where the court saw its first million dollar election battle, and Marquette University Professor Paul Nolette considers this transformation “a reflection in part of the polarization in Wisconsin in general.”

Battles over the Wisconsin Supreme Court, and within the court, have been raging for years. Formerly, the role of chief justice fell to the court’s most senior member, but a 2015 constitutional amendment changed this selection process to election by the other justices. Democrats derided that amendment as a veiled attempt to unseat then incumbent liberal Chief Justice Shirley Abrahamson, but it nonetheless passed the legislature and a statewide ballot. I observed in a previous post that tensions heightened even further as Chief Justice Abrahamson subsequently sued the other six members of her court after losing reelection as chief under the new rules.

#scowi

  

Thanks to Arrian Ebrahimi for research assistance.

Utah Judicial Selection in National Perspective

Utah is interesting, and not just for Mitt Romney being the only senator to break from party over removing President Trump from office. A proposed amendment to the Utah Constitution is a chance to note that Utah is also interesting because its method of supreme court selection seems to appeal both to advocates of "merit selection" and to people (like me) who reject that label, and what it often conceals, in favor of "democratic appointment."

The gist of "merit selection" (better called the "Missouri Plan") is that applicants for a judgeship are vetted by a nominating commission that supposedly cares about "merit" rather than "politics". Only the commission's three (or so) finalists may be chosen by the governor to fill the judgeship.

With the commission playing such a key role as gatekeeper to the court, the key is who appoints the commission? Who picks the picker?

Unfortunately, many "merit selection" states allow the bar to pick some members of the commission,  which violates basic democratic equality by privileging lawyers above their fellow citizens in the selection of important public officials. These officials, as every lawyer knows, sometimes move the law in a progressive direction or a conservative direction. State supreme court justices are important lawmakers.

Important lawmakers should, in our democratic society, be exercised by people selected in a democratic manner.

Fortunately, this does not have to mean electing judges. That sort of direct democracy is not as good for judges as the indirect democracy of having the executive and legislative branches select the judicial branch, as we do for federal judges with senate confirmation. In fourteen states (listed below), the governor's judicial nominees to the highest court are confirmed by the senate, whole legislature, or other popularly-elected officials. This is the usual method of "democratic appointment" I support.

But suppose the governor must pick from a commission's finalists before sending the governor's pick to the senate for confirmation? That three-step process (commission to governor to legislature) is  how Utah judges are selected.

This is still "democratic appointment" if the commission is selected in a democratically-legitimate way, as opposed to having commissioners selected by the bar. Fortunately, 4 of the 7 members of the Utah Appellate Nominating Commission are selected in a democratically-legitimate way--by the governor. Two more the governor also gets to appoint but only from a list of nominees submitted by the Utah State Bar. The chief justice appoints another member of the Utah Judicial Council to serve as a nonvoting member of each commission.

So Utah does give the bar a formal role it should not have w/r/t 2 of the 7 commissioners. But that's far from the states that allow the bar to pick (not merely suggest names to the governor) about half the commission. And I wonder whether Utah governors ever reject the bar's suggestions as occurs in Florida, which has a similar system?

Utah calls its system "merit selection" and its constitution says "Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration."
Yet it nevertheless manages to be (almost completely?) democratically legitimate. Good for Utah.

The 16 states that select their high courts with a democratic method of appointment are:

California
Connecticut
Delaware
Hawaii
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
New York
Rhode Island
South Carolina
Tennessee
Utah
Vermont
Virginia

Voting in Judicial Retention Elections

Voter Response to Salient Judicial Decisions in Retention Elections is an interesting article by Yale Professor Allison P. Harris. Among its points:

"Appointed judges are generally accountable to whichever branch of government (executive or legislative) they rely on for appointment and reappointment. Citizens can hold elected judges accountable with their votes. However, most of the factors driving voter participation in judicial elections are associated with partisan and competitive, rather than retention, elections.
Nonpartisan uncontested judicial retention elections occur in many states for a variety of types of courts.
However, they are especially common in states, like Iowa, that have adopted the Missouri Plan, also referred to as merit selection, for the selection and retention of judges."

"High-profile campaigns against judges running for retention, like the one in Iowa in 2010, are not the norm, and most campaigns will not achieve their goal of removing judges from the bench. But justice removal is not the only reason we should be interested in campaigns against retention and shifts in retention race results. If voters are the only ones who can punish or reward Missouri Plan judges after appointment, then it is important to understand the factors related to shifts in participation in these races. The results of analyses presented in this article suggest that we need to take greater care in evaluating the extent to which judges who run in retention elections are independent from voters. Voters do respond to salient decisions and mobilization in retention races. Even if the judges running in these elections are ultimately retained because more of the voters cast yes votes than no votes, they are not as independent from voters as opponents of retention elections often argue."

The Politics of Kansas Supreme Court Selection and the Bar's Weak Argument about Judicial Independence

Kansas Governor Laura Kelly, a Democrat, appointed Judge Evelyn Wilson to the Kansas Supreme Court. "The state’s leading anti-abortion group, Kansans for Life, had called Wilson’s nomination 'purely political',” according to the Wichita Eagle, which noted the KFL "highlighted past contributions her husband made to politicians supportive of abortion rights, including Kelly and former Gov. Kathleen Sebelius."

Another retirement on the court, means "Kelly, who is about to finish her first year in office, will have already made a greater imprint on the court than the last two Republican governors, who served a combined eight years in office."

Republican legislators "plan to push next year for an amendment to the state constitution to eliminate the nominating commission and have justices named by the governor subject to Senate confirmation", notes AP's John Hanna, who adds: "Conservatives argue that the current system, in use since 1960, results in a court more liberal than the electorate and makes justices less accountable to voters. Supporters of the system contend it preserves judicial independence."

In fact, however, judicial independence relates more to judicial retention rather than initial judicial selection. For instance, federal judges are initially selected through senate confirmation and have life tenure, giving them tremendous independence. To the extent initial selection relates to judicial independence, the current Kansas system reduces judicial independence on the bar, by giving the bar power that belongs to elected officials in many states, as well in the selection of federal judges. More on judicial independence at p. 751 n.2, 769-74 of my article linked here.

US Supreme Court asked to Rule on State Judiciary Political-Balance Requirement

Delaware's Constitution, Art. 4, sect. 3, says "three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party." This political balance requirement, the Third Circuit held in Adams v. Governor of Delaware, is unconstitutional under the freedom of political association guaranteed in the First Amendment to the U.S. Constitution. The Governor of Delaware has asked the U.S. Supreme Court to hear this case. 

In Adams, "the 3rd Circuit split with the 6th and 7th Circuits, as well as several trial courts, when it concluded that appointing authorities cannot consider the political affiliations of judicial candidates", Alison Frankel notes.

Adams explained that "In 1897, Delaware was unique in its method of judicial selection—it was the only state in the country in which the governor appointed judges without legislative involvement." But in that year, Delaware added senate confirmation and implemented an earlier version the political-balance requirement. Then "In 1951, as part of a wider series of structural changes to the Delaware judiciary, the provision was modified to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, Superior Court, and Chancery Court in Delaware."  

In holding this political-balance requirement unconstitutional, Adams summarized Supreme Court precedent:

In Elrod v. Burns, Justice Brennan, writing for the
plurality, recognized that the practice of patronage
dismissals—dismissing a civil servant because his political
affiliation differed from the political party in power—is “inimical to the process which undergirds our system of
government and is at war with the deeper traditions of
democracy embodied in the First Amendment.” He
explained that to justify terminating a public employee based on political allegiance, the government must show that the practice “further[s] some vital government end"...The plurality suggested that the government’s interest in employee loyalty would allow it to discharge employees in policymaking positions based on political allegiance.

In Branti v. Finkel, the Court stated that “if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” The Court, however, moved away from Elrod’s policymaking distinction and held that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”

In Rutan, the Court confirmed that the general prohibition on politically-motivated discharge also applies to decisions to promote, transfer, or hire an employee. “Unless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms.” The Governor of Delaware sets forth two arguments to justify his practice of requiring applicants for judicial positions to be Democrats or Republicans: first, the Governor argues that because judges are policymakers, they can be hired or fired based on their political affiliation without restraint, and second, the Governor argues that even if they are not policymakers, Delaware has an interest in political balance that justifies the restrictions set forth in Article IV, Section 3.

In our cases applying Branti, Elrod, and Rutan, the Third Circuit has found that political affiliation is an appropriate requirement for assistant district attorneys, a city manager, and others. But Adams concluded "that a judicial officer, whether appointed or elected, is not a policymaker."

The American Bar Association’s Model Code of Judicial Conduct instructs judges to promote “independence” and “impartiality,” not loyalty. It also asks judges to refrain from political or campaign activity. The Delaware Code of Judicial Conduct similarly makes clear that judges must be “unswayed by partisan interests” and avoid partisan political activity. The Delaware Supreme Court has stated that Delaware judges “must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will.”

The Governor argues that by interpreting statutes, 
sentencing criminal defendants, and crafting the common law, judges in Delaware make policy and exercise significant discretion. But the question before us is not whether judges make policy, it is whether they make policies that necessarily reflect the political will and partisan goals of the party in power. Independence, not political allegiance, is required of Delaware judges. 

To the extent that Delaware judges create policy, they
do so by deciding individual cases and controversies before
them, not by creating partisan agendas that reflect the interests of the parties to which they belong.

We are aware that two of our sister Circuits have
concluded otherwise. In Kurowski v. Krajewski, the Seventh
Circuit determined that the guiding question in political
affiliation cases was “whether there may be genuine debate
about how best to carry out the duties of the office in question, and a corresponding need for an employee committed to the objectives of the reigning faction,” and answered that question in the affirmative with respect to judges and judges pro tempore. In Newman v. Voinovich, the Sixth Circuit similarly concluded that judges were policymakers who could be appointed on the basis of their partisan affiliation.


For decades, Delaware governors have issued executive orders establishing or continuing Judicial Nominating Commissions to assist the Governor regarding all appointments of judges. Adams says "Eleven of the twelve commission members are appointment by the Governor, and the twelfth is appointed by the president of the Delaware State Bar Association with the consent of the Governor. The commission provides a list of three recommended candidates to the Governor. The Governor is not free to ignore the commission’s recommendations; if he is not satisfied with the list, the commission generates another list of candidates. The nominating commission is politically balanced and comprised of both lawyers and non-lawyers."

Iowa Supreme Court Selection

Iowa is one of a few states that privilege lawyers in judicial selection by allowing the bar to select members of the judicial nominating commission that narrows down the pool of applicants to three from which the governor must pick one. 

Until 2019, the bar and governor each selected 8 commissioners with the 17th a sitting state Supreme Court justice. The 2019 law takes away the sitting justice's place and replaces with another commissioner selected by the governor.

Lawsuits challenging this change have thus far not succeeded.

More on Iowa judicial selection

Women and People of Color on State Supreme Courts

Laila Robbins and Alicia Bannon of the progressive Brennan Center find:

"people of color have consistently made up a higher proportion of appointed, as compared with elected, first-time supreme court justices. Incumbent justices of color have also is proportionately
been challenged and lost elections once on the bench, as compared with incumbent white justices.
By contrast, by most measures, women have fared similarly under both elective and appointive methods"

Their full paper is available free of charge

Pennsylvania Judicial Elections

Pennsylvania now elects judges on a statewide ballot, the legislature is considering electing them by district instead, the Philadelphia Inquirer reports.

Republicans hold majorities in the legislature and, @jbaernews writes, "Republican leaders were, and likely remain, apoplectic about the Democratic-controlled state Supreme Court, which in 2018 ruled legislatively drawn congressional districts unconstitutional and replaced them with new districts, which helped add more Democrats to the U.S. House."

The bill is opposed by the Pennsylvania AFL-CIO

SCOTUS Politics With Video

Recent judicial confirmations have laid bare the political divisions present in the nation’s highest court. In the Dole Institute Student Advisory Board’s spring program, two experts on judicial confirmation, law and legal institutions examine politicization of the Supreme Court. Joining the conversation are Lee Epstein, Ethan A.H. Shepley Distinguished University Professor at Washington University, and Stephen Ware, KU professor of law.

Election of 19 African American Female Judges in Texas

The election of 19 African American female judges in Harris County, Texas, is the subject of a story in Marie Claire.  It says the population of Harris County, which includes Houston, is 43% Hispanic, 20% black, and 30% white. The November election increased the number of black female judges from eight to 25 of the 75 elected judgeships.

New Book on Judicial "Merit Selection" Nominating Commissions

"Judicial Merit Selection: Institutional Design and Performance for State Courts" is a new book by Greg Goelzhauser, a Political Science Professor at Utah State University.

The publisher, Temple University Press writes: "In Judicial Merit Selection, Greg Goelzhauser amasses a wealth of data to examine merit selection’s institutional performance from an internal perspective. While his previous book, Choosing State Supreme Court Justices, compares outcomes across selection mechanisms, here he delves into what makes merit selection unique—its use of nominating commissions to winnow applicants prior to gubernatorial appointment."

Senate Confirmation of State Judicial Nominees: Significant Impact?

In 2013, Kansas changed its Court of Appeals selection process to include state senate confirmation of the governor's nominee--a reform that may have just had a significant impact.

On March 15, 2019, Kansas Governor Laura Kelly, a Democrat, nominated District Judge Jeffry Jack to the Court of Appeals. However, a few days later, Gov. Kelly withdrew her nomination after tweets surfaced that showed Judge Jack "voicing his disdain for conservative leaders and Republican lawmakers in sometimes coarse, profane language" according to the Kansas City Star, which reports they "sometimes include F-bombs."

The Star also notes "In a statement regarding her appointment of the judge, Kelly said Jack was chosen from a list of finalists recommended by a committee of lawyers and non-lawyers, and that the choice was based on merit."

In nominating Judge Jack, Governor Kelly said: “Because I value transparency and the judicial merit-selection process, one of my first acts after my election was to create a committee of knowledgeable lawyers and non-lawyers to recommend finalists for the Court of Appeals vacancy...That committee ensured that our next Court of Appeals judge would be selected through an open process based on merit, and I thank the members of nominating committee for their work.”

Under the headline "After Judge Jack fiasco, legislators call for more oversight of court nominations", the Kansas City Star notes that: "One day after Gov. Laura Kelly withdrew his nomination to the state Court of Appeals, Republican lawmakers are pushing to remove Judge Jeffry Jack from his seat on the 11th District Court, and to mandate Senate confirmation of Supreme Court judges."

The Kansas Supreme Court is now chosen through a nominating commission, most of which is selected by the bar. The commission gives three names to the governor, who chooses the final candidate, without senate confirmation.

Governor Supports Removing Bar Power From Iowa's Judicial Selection

Iowa is one of a few states that privilege lawyers in judicial selection by allowing the bar to select members of the judicial nominating commission. This undemocratic violation of the one-person-one-vote principle is criticized by me in this video focused on Iowa, and in this national article (linked).

Fortunately, a bill to remove this bar favoritism has been introduced in Iowa. The bill would allow democratically elected officials to select members of the judicial nominating commission. Gov. Kim Reynolds supports the bill.

Thoughtful commentary by Vanderbilt Law Professor Brian Fitzpatrick

More on Iowa judicial selection

Florida Supreme Court Appointments More Conservative

New Florida Governor Ron DeSantis, a Republican, named Barbara Lagoa to the Florida Supreme Court. Lagoa is the first Cuban-American woman to serve on Miami’s appeals court and will be the first Latina on the Florida Supreme Court.

Gov. DeSantis also appointed to the state supreme court, Judge Robert Luck, "the first Jewish justice appointed in over 20 years", according to the The Miami Herald.

The Herald explains that these appointments will likely make the court more conservative as "The Republican governor ... is replacing three retiring Supreme Court justices: Barbara Pariente, Fred Lewis and Peggy Quince, who often sided on liberal issues and against the Republican-controlled Legislature."

Judicial Campaign Contributions and Spending

A new article by University of Washington Law Professor Hugh D. Spitzer and Philip Talmadge "reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public’s perception of court impartiality."

The article, "then proposes a number of actions that state courts and legislatures could take to control judicial campaign spending. First, we recommend that in jurisdictions with inadequate statutory judicial campaign controls, state supreme courts should act forcefully to impose strict caps on both direct and coordinated contributions to judicial campaigns, using the American Bar Association’s Model Code of Judicial Conduct, Rule 4.4(B)(1). Second, we suggest that state codes of judicial conduct should integrate the parallel mandatory disqualification mechanism in the ABA’s Model Code of Judicial Conduct, Rule 2.11(A). Next, we contend that legislatures have sufficient cause under a strict scrutiny test to protect judicial impartiality and the appearance of impartiality by limiting total judicial campaign committee expenditures and controlling independent expenditures by outside groups. Further, we assert that if legislatures fail to act, the courts themselves have sufficient inherent authority to impose those expenditure limits. Finally, we urge states to adopt public funding systems for judicial campaigns, and we argue that the need for judicial impartiality should provide legislatures with sufficient cause to adopt restrictions that would not be constitutionally acceptable in non-judicial campaigns."