Litigation

Ruling Lets Wisconsin Judges Get Partisan

By Lissette Villarruel

State judges can now join political parties, endorse political candidates, and seek  campaign contributions, as a result of a federal judge’s ruling, according to a Milwaukee-Wisconsin Journal Sentinel article.

In a case challenging the Wisconsin Judicial Commission, U.S. District Judge Barbara Crabb, left, ruled that the regulations for judicial candidates not only violated judges? First Amendment rights but also did not significantly protect courts from political influence. According to Crabb:

Once a state decides, as Wisconsin has, that judges are to be democratically elected along with the members of the other two branches of government, the task of legislating nonpartisanship and the appearance of impartiality without violating the First Amendment becomes a thicket of complexity.

Since voters are the ultimate authority on what criteria are important, Crabb argued, the government cannot limit a candidates? free speech in an effort to control that information.

Citing the surge in campaign expenditures in the past years, Crabb declared that ?Wisconsin?s own recent history demonstrates that a nonpartisan judiciary is no panacea for the problems of contentious elections or perceptions of bias.? Crabb maintained that partisanship in judicial elections did not present any serious harm to an independent judiciary, as the rules are already ?underinclusive,? allowing judges to accept donations from partisan groups while still claiming to be nonpartisan and impartial.

The voters, Crabb said, should be given more credit in their ability to identify the hand of politics within judicial elections. Furthermore, if candidates are allowed to disclose their party affiliations, Crabb argued, voters would be able to make more informed decisions and would also be protecting themselves from those judges whom they believe hold a bias:

The current rule does not eliminate potential bias, but only hides it. One could argue that abolishing the rule furthers an interest in preventing biased judges from hearing cases. If those judges revealed their political affiliation, parties who thought the affiliation would make the judge biased against them could move for recusal.

As Crabb conceded that the regulations would not be sufficient so long as judges were elected, she declared that allowing judges to have those political affiliations would be would not harm an independent judiciary and any perceived grievances could be countered by filing motions for recusal.

Jim Alexander, executive director for the Wisconsin Judicial Commission, told the Journal Sentinel that he was disappointed by the ruling and is considering appealing the decision. The ruling also concerned Mike McCabe of the Wisconsin Democracy Campaign: ??It?s one more way that our judicial system will be heading down a path that I think ultimately only serves to undermine public confidence.??

The full text of Judge Crabb?s decision can be found here.

Full post as published by The Gavel on February 20, 2009 (boomark / email).