Yesterday afternoon, I had the opportunity to participate in a telephonic press conference with Kelly Ann Conway, President of the Polling Company. The conference was timed to coincide with the release of my white paper and a poll commissioned by the Federalist Society on attitudes of Wisconsin voters toward the state Supreme Court and certain issues around the role of the judiciary.
In the course of the conference, one member of the media asked about the emphasis on criminal law in the Supreme Court election, noting that ads focused on such issues are often run by groups, i.e., WEAC, WMC, etc., that do not seem to have criminal justice issues among their core policy concerns.
That seems true - in part. Criminal justice issues get overemphasized in these races because that is what the public responds to. Criminal law is what the people associate with courts. I agree that this can distort the conversation. In fact, I would argue that the most problematic decisions recently issued by the court (with the exception of Jerrell C.J. and the gun amendment cases) are not criminal law or juvenile cases.
But there may also be some substance to this. As a general rule (and nothing here is always true), judges identified as conservative (or liberal) on criminal issues are also conservative (or liberal) on other issues. The cynical way to view this is that all judges simply allow their politics to dictate their decisions, but I think it's more complicated than that.
During this period in legal history, it tends to be those judges with sympathies that are politically liberal who adopt interpretive approaches that tend to provide them with greater, rather than less, discretion. There is no law of nature that requires this to be so and it hasn't always been this way. It is, I think, a by-product of an entrenched emphasis within legal education on matters of policy and the use of the law to achieve political results.
Again, this is not an ironclad rule. We can find exceptions and to say that some judges regard themselves as having a greater degree of discretion does not not mean that they believe themselves to have complete discretion.
Often, this greater degree of discretion is informed by a view of the courts as charged with special solicitude for the interests of those who are thought (sometimes rightly and sometimes wrongly) to be unable to fend for themselves in the political process. Thus a judge with greater sympathies for criminal defendants may have less sympathy for business.
Thus, we ought not to be surprised if groups looking to elect judges who are less hostile (or more sympathetic) to business might wind up supporting judges who are also seen to be, in various ways, tougher on crime. It isn't that they support "tough on crime" judges who will then support their interests out of a sense of indebtedness. It's that they support candidates who have an overall approach to judging that results in a narrower interpretation of the rights of criminal defendants and a reluctance to interfere with the political process or interpret legal authorities to further the favored outcomes of what Justice Scalia called the "law-profession culture."
Having identified those candidates, those aspects of their judicial philosophy that polls the best - a sense that they are "tougher on crime" - gets emphasized.
Because those involved in judicial elections do not believe that there is any politically viable option to a "tough on crime" approach, those who want judges who are more likely to be sympathetic to the interests of the political left need to either portray their preferred candidates as tough on crime or attack the "toughness" of their preferred candidate's opponent.
So there may be a method to this madness, but, of course, I would like to see a broader conversation and I am not sure that you can't have one. Much of what you see in judicial elections (and every other kind) is poll driven. Is it possible that in a low interest election there is a greater opportunity for campaigns to shape attitudes - given that they are loosely held. Unfortunately, it may be just the opposite. Because the elections are low interest, you can't get people's attention long enough to shape attitudes.