The $100 million in campaign spending for Tuesday’s election for a seat on the Wisconsin Supreme Court is a terrible, terrible way to select a judge. In Wisconsin and 23 other states, jurists on their highest court are wrongly elected. The 26 states with appointed top court judges have it correct.
It’s not a matter of limiting the money in campaigns, which can’t be done as the U.S. Supreme Court has said political expenditures are allowed under the First Amendment in cases like Buckley vs. Valeo and Citizens United vs. Federal Election Commission. It’s that there should not be judicial elections at all.
Judges aren’t councilmen or assemblymen or congressmen or mayors or presidents. Their job isn’t to be responsive to constituents and to advance one set of policy objectives or another; it’s to stand aside from partisanship and fairly handle cases, including whether given laws are consistent with state and federal statutes and constitutions.
New York has some elected judges at the trial level, but the seven members of our highest court are nominated by a governor off of an approved list and them confirmed by the state Senate; they then go on to serve 14-year terms. It took amending the state Constitution by a vote of the people in 1977 to make that change and we are lucky that it happened.
Wisconsin should do the same instead of putting its top court up for a popularity contest.
At the federal lever, thankfully all judges are nominated by the president and confirmed by the Senate. That includes the U.S. Supreme Court justices. Also, those federal judges all serve for life, which means, even when a president thinks they owe him absolute loyalty, they have the freedom to make the decisions they think best. (Their ideology often makes it impossible to see cases clearly, but that’s another problem.)
But that’s not the situation in half of the states. Quite stupidly, all their highest courts have top judges chosen directly by voters — in elections where moneyed interests can pour millions to try to sway things one way or another.
This is a direct perversion of what’s supposed to be the apolitical branch.
Elon Musk, who tried a similar stunt during last year’s presidential election to give away cash, says he is visiting Wisconsin Sunday. In a social media post, he said he planned to “personally hand over” $2 million to voters who had already cast their ballots for Musk’s (and Trump’s) preferred candidate, as close as it gets to saying votes were being purchased.
Musk then deleted that tweet — and replaced it with one saying the money will go to people who will be “spokesmen” for an online petition against “activist” judges. He may now be on the right side of the law, but the implication is equally disgusting.
Judges, like all people, have political opinions. They’ll never be turned into robots. But when they’re treated like ordinary elected officials who must grovel to voters, and who can be swayed by people wielding huge checks, the third branch of government rots, and breaks right off the tree. Get the money and the votes out of judicial selection.
