Hearing about the issues in the Supreme Court race

Yesterday, the Milwaukee Bar Association and several other lawyers' organizations held a judicial candidates forum. The forum was hosted by Mike Gousha, newly named Distinguished Fellow in Law & Public Policy at Marquette Law School. I was interested in the remarks of the Supreme Court candidates.

Madison attorney Linda Clifford criticized Judge Ziegler's campaign for a fundraising letter, signed and written by Margaret Farrow, that, in her view, constituted "meaningless labeling and name calling” amd that "attacked the integrity of the court." She said the letter reflected a lack of judicial temperment and called upon Judge Ziegler to renounce what she saw as a product of "extremist elements" in our state.

You can read the letter here. I would not use some of the language that it used, but I am not a fundraiser either. Nor is it a simple matter to attribute what is said in a fundraising letter to a judicial candidate. The state's code of judicial conduct prohibits a judge from personally soliciting or accepting campaign contributions. While I suppose you could review or repudiate a fundraising letter, there needs to be a barrier between the candidate and fundraising that does not exist for other types of office.

My concern is not the particulars of the letter, but to make clear that the a debate on the proper role of the judiciary - even if it does involve criticism of some of the court's past decisions - is not an assault on the court. What concerns me is the risk that we essentially remove the issue of judicial philosophy from the race by conflating criticism of the court and the way in which at least three of its members (who are lawyers of intelligence and integrity)see their roles with a meaningless "attack."

Without getting into everything it says, the letter says that a majority of the court has made decision that are indeed tantamount from legislating from the bench and that have usurped the role of the legislature. That is a strong criticism, but it is one that has been made by the dissenters in some of the court's cases.

For example, Justice Jon Wilcox, dissenting in Thomas v. Mallett, 2005 WI 129, 285 Wis.2d 236, 701 N.W.2d 523, a case holding that a plaintiff may sue the manufacturers of lead paint pigment without proving which ones made the pigments to which he was exposed, says that "the majority opinion amounts to a little more than this court dictating social policy to achieve a desired result" and that it did not "conduct a fair and neutral evaluation of the merits of the parties' arguments in light of the state's laws and constitution."

In State v. Jerell C.J., 2004 WI 105, 283 Wis.2d 145, 699 N.W.2d 110, a case requiring that all custodial juvenile interrogations must be electronically recorded, dissenter Justice David Prosser said that the majority's opinion constitutued "legislating from the bench."

In Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis.2d 573, 702 N.W.2d 440, a case that struck down limits on malpractice judgments, Justice Patience Drake Roggensack wrote in dissent that the majority opinion "'talks the talk' about legislative enactments and the heavy burden the challenger to a statute has, ... but it does not "walk the walk."

This is strong language (and I could list more examples), but I do not believe that Justices Prosser, Wilcox and Roggensack lack respect for their colleagues. In disagreeing over important matters, people often speak sharply.

As the campaign proceeds, I hope that the candidates will engage in a frank discussion of their views of the role of the judiciary. I want to hear how they believe a judge ought to decide cases rather than simple bromides about "qualifications" and "following the law." Courts deserve respect and I agree that candidates for judicial office should not promise to decide particular cases in given ways or run as partisans. But that doesn't mean that they get to ignore the elephant in the living room - which, in this race, is when and how a judge should override the enactments of the legislature, when he or she should depart from settled precedent and upon what principles and values he or she should base decisions.



There are people who think that this type of judging is justified. I don't. But whether or not it is and what these candidates think the role of a judge should be is - without qualification - the most important issue in the race for Supreme Court; that is every bit as important as the race for Governor.