Chief Justice Shirley S. Abrahamson delivered the annual State of the Judiciary Address at the Wisconsin Judicial Conference on November 6. Her remarks, titled “Back to the Future,” focused on effort to improve the judiciary by applying cutting-edge innovation to evidence-based lessons learned in the past. Abrahamson focused specifically on judicial selection and recusal, touched on the financial challenges the courts face, and detailed new criminal and family initiatives.
With regard to judicial selection and recusal the Chief Justice said:
I said when I stood before you one year ago that there is no perfect system for selecting judges. Any elective or appointive process may be hijacked.
Like every other state that elects judges, Wisconsin struggles with low voter turnout in these races and difficult issues related to campaign speech, fundraising, and judicial recusal.
One thing is certain. Wisconsin conducts non-partisan judicial elections in which independent groups (some identified with political parties) have begun to expend substantial sums of money. These sums invariably raise issues of the appearance of partiality and recusal standards, and the public is concerned. Recent poll results show that more than 80% of respondents believe that campaign financing influences court decisions.
If meaningful public financing of judicial elections is in the future, the road there is not visible.
So I return to the question I asked last year: What assistance might we find to address issues of judicial recusal?
No decision a judge makes is more important than the decision about whether to sit on the case. We must not remain on cases when a reasonable person could question our impartiality, but we must not use recusal as a way to duck a difficult or controversial case. Recusal decisions are not easy, as we all know.
I called upon our Office of Judicial Education, the two law schools—the University of Wisconsin and Marquette University—and the State Bar to develop education programs related to recusal.
Recusal was on the Judicial College agenda this past summer, and the Judicial Education Committee is considering ways the subject may be approached at seminars and at district meetings.
Marquette University Law School took an important step when last month it invited Yale Law Professor Heather Gerken, an election law expert, to deliver the Boden Lecture on money and politics. I asked Professor Gerken about the effect of campaign contributions and expenditures on judicial campaigns. She replied as follows:
[J]udicial elections are one of the places where money is likely to have the most corrosive effect. The obvious reason, of course, is that we have a different sense of the position (hence all the objections about judicial elections generally). But I have an additional worry that stems from my experience in election law. In most instances, big money funds races between the two major parties. There, at least, voters have some background sense of the politics of the candidates, which means that money may have less of an effect. In . . . judicial elections [however] . . . , the money may matter more because we lack . . . a . . .“shorthand” [like an identification with a political party] to guide our votes.
I have recently repeated my request to the deans of the two law schools to host symposia for the bench, bar and public on the issue of judicial recusal.
Last year I asked the State Bar to help protect judicial independence by responding to personal, partisan, intimidating attacks on judges. This year the Bar is in the process of working on a strategic plan to address challenges to a fair, impartial, neutral and non-partisan judiciary, including the challenge presented by outright attacks on the judiciary.
The State Bar has proposed a state constitutional amendment to elect Supreme Court justices for one 16-year term. The proposal is designed to ensure that justices do not have to run for re-election, in the hope that they will be perceived as more independent. The Bar is to be applauded for taking on this difficult and important issue of judicial selection. It is important that this proposal engender public debate.
So what are the next questions? Here are two: How does a single, 16-year term address the issue of transparency in campaign contributions and expenditures and recusal? To what extent may a retired justice take advantage of his or her “insider” knowledge in pursuing postretirement employment opportunities?
Last year I said I would communicate with the Judicial Commission about seeking amendment to the state constitution and the statutes to attain effective discipline for appellate court judges and justices. The Judicial Commission has declined to undertake this project.
I have told you what I seek: Better, more transparent, more fail-safe recusal standards; a judicial discipline system that works at all court levels; continuing judicial and public education about recusal; and an organized system for responding to intimidating personal attacks on judges. No laboratory is going to produce a solution to these problems. This task lies with lawyers, judges and the public. And it will take every bit of commitment, creativity and courage we all can muster over many years.
Another section of the speech focused on the court system’s finances. Abrahamson expressed concern that dealing with the $11.8 million budget lapse would be challenging, but did not offer any details on how budget cutbacks will be addressed.
The remainder of the speech focused on new criminal justice initiatives and initiatives focused on children and families.
Following the State of the Judiciary Address, Director of State Courts A. John Voelker gave his annual State of the Director’s Office Address.
This post originally appeared on the Wisconsin Civil Justice Council’s blog.