Friday, April 4, 2008

Althouse: Wisconsin citizens seem to have demonstrated their liking for conservative state supreme court justices.

Althouse: Wisconsin citizens seem to have demonstrated their liking for conservative state supreme court justices.

My esteemed colleague Ann Althouse (currently in Brooklyn) is blogging up a storm on the recent (in my view, horrific) judicial election in Wisconsin. We have been trading lively postings on an internal faculty list at UW Law School, and my practice is not to quote those communications (other than my own, with quotations from others deleted) "out of school." But I have now made a couple of postings on Ann's blog, and don't see any reason not to reproduce them here [with some editing appropriate to change in context]. Many of Ann's fans are politically conservative, and my remarks are, in part, directed to their comments as well as to Ann's own.

AJW Comment 1:

Ann: "I am only saying that, given the Wisconsin voters taste for conservative judges, we deserve top-quality conservative candidates."

Actually, it would seem to me, the evidence of the past two elections, at least, is [equally consistent with the proposition] that Wisconsin voters (or the relatively few of them participating in judicial elections), and those financing the bulk of unaccountable third party ads, prefer ethically-challenged nonentities.

I see no evidence that they would respond favorably to "top quality" candidates. Which would suggest to me that the sitting Chief Justice--widely recognized as one of the most outstanding and hardest working jurists in the country--may be in real trouble. [Her re-election campaign is next year.]

Given that an important role of the judiciary is to enforce counter-majoritarian constitutional rights--which virtually by definition will be highly unpopular on many occasions--why on earth should justices be popularly elected--even more so given the increasing role of unaccountable and irresponsible money in these campaigns?

AJW Comment 2:
Pretty much all judicial candidates (short of a Robert Bork, and there haven't been many who haven't learned from his experience) read from the same script when describing their judicial philosophies and approaches to interpretation. Once secure in their lifetime tenures [not applicable to many state court judges], a few may go so far as to be slightly revealing of their relative priorities among agreed relevant considerations (one can, for example, meaningfully compare the judicial philosophies of Justices Scalia and Breyer based on their speeches and extra-judicial writings, as well as their decisions).

When it comes to appraising actual performance, much (including the attachment of such content-deprived and typically misleading labels as "activist" or "liberal" or "conservative") is in the eye of the beholder, and it is quite easy to mischaracterize particular decisions by being "highly selective" in contextualizing facts, legal questions presented, consequences, and how the decision fits in with pre-exiting precedent. Of course, the typical 30 second attack ads provide an ideal setting for fully and fairly presenting all of this in a careful and comprehensive fashion. (Yes, I am being ironic here.)

And, of course, we have seen how judicial election campaigns present a careful evaluation of the full range of issues likely to confront state Supreme Court Justices. You have noticed, perhaps, the amount of attention that Wisconsin Manufacturers and Commerce ads devote to the candidates' positions on deregulation of business and protection of business interests from liability based on injuries resulting from their unsafe practices? And owned up to the degree to which these considerations (rather than the purported safety of Wisconsin families from criminal intrusions) bear on their spending commitments in taking over these judicial campaigns?

Just so we can understand the true meaning of the proclivity of well-informed Wisconsin voters to favor "conservative" judicial candidates.

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