Friday, April 18, 2008

Judge Sykes on judicial selection

For those interested in the coming debate over judicial selection, Judge Diane Sykes gave a thoughtful speech on the subject at yesterday's meeting of the Eastern District of Wisconsin Bar Association. I didn't hear the speech because of a prior commitment, but have read a copy and I believe it will ultimately posted to the Journal Sentinel's Proof and Hearsay website.

Judge Sykes is troubled, as was I, by the tone of the last election. She invites debate over judicial selection without expressly endorsing any particular method. I think that the key challenge of that debate is summed up in the following passage:

Elections operate as an external constraint on state judges’ job performance. There is no question that this weakens judicial independence—that’s the whole point. Independence and accountability are important, but conflicting, values. In choosing an elected judiciary, Wisconsin has accepted a reduction in judicial independence in order to achieve a greater level of judicial accountability.

What makes acountability so salient is differences in opinion about the role of the judiciary. Judge Sykes observed:

Broadly speaking, it is a struggle between interpretivist and noninterpretivist judges. Labels are tricky, but to generalize, the former try to decide cases by reference to neutral principles and sources of interpretation that operate to limit judicial discretion: the text, structure, and history of the constitution and laws, precedent, and traditional rules of legal interpretation. This approach tends to be more restrained in the use of judicial power and therefore more sensitive to separation of powers and the prerogatives of the other branches of government. On the other side of the philosophical divide are those judges who subscribe
to a more expansive view of the judicial role and see the law as a malleable instrument through which judges should try to achieve the “right” or “best” or “just” result. These judges are more inclined to look behind the language and structure of the law, more willing to modify traditional interpretive methods, and less inclined to defer to the other branches of government. This struggle has obvious consequences for judicial politics.

I missed Judge Sykes' speech because I attended an address by former Attorney General Ed Meese at Marquette University Law School. General Meese focused on the politics and tone of Senate confirmation of federal judges, noting the way in which battles over the nominations of Bob Bork, Clarence Thomas, Sam Alito and even John Roberts departed from historical practice. They became battles over ideology because, since the Warren Court, ideology in judging matters.

Judge Sykes notes that "[i]t is not impossible to elevate the level of discourse and still articulate the philosophical differences that may exist between judicial candidates so that the public understands what’s at stake." "Drawing these philosophical contrasts," she says, "does not require playing on voters’ fears or hitting them between the eyes with images of bloody knives, dead bodies, empty swings, and mug shots of child molesters."

I would add that it can be done without referring to judicial nominees as racially insensitive or indifferent to the needs of ordinary people because they do not believe that it is their prerogative to shape policy in a way preferred by their critics.

Nor is the debate served by denying that these differences exist.


Anonymous said...

Since when has any candidate enjoyed the tone of an election?

Super Id said...

I fear that with elections, the incentive is to do what is popular rather than what is right. I belive that studies show longer prison sentences being handed down right before a judicial election.

You can say that's why we should elect textualists, but as any lawyer knows you can get pretty creative applying the text. Since no complete case is contained entirely on the statutes there is a fair amount of discretion that Judges must apply to determine whether the facts can be distinguished.

Finally, let's not forget the impact that the lawyers make on a case. The better lawyer presents the facts and arguments more clearly and obtains a better result for his or her client. Yet for elections, the role the lawyer is completly ignored.

For all we know, the most "judicially active" decisions could have resulted from poor lawyering on the losing party. Judges are not obligated to make a party's case--but rather, just to decide it.

Personally, I would like to see appointed judges by a bipartesn panel with recommendations by the state bar.

Anonymous said...

super id -

One must conclude from your comments that the judicial system has been only doing what is popular for the past 168 years rather than doing what is right.

Should all precedent be removed because it obviously must be tainted?

Brett said...

Anonymous 6:34:

Every proposition taken to its extreme fails. I think super id was simply commenting on the limitations of "activism," not complaining of a systemic failure in judicial precedent.

Anonymous said...

brett said -
"Every proposition taken to its extreme fails."

As in attempting to take away the right to vote from people because your candidate lost or because you didn't like the tone of the campaign?

Appears extremist to me and I hope you're right.

Super Id said...


"One must conclude from your comments that the judicial system has been only doing what is popular for the past 168 years rather than doing what is right."

If that's your inference, a textualist you are not. Let's put you in the category of literary activism.

This last election was about one case, and one case only: Thomas v. Mallet-- The lead paint case. Surely you don't think WMC would millions because it disliked the result of a search and seizure case.

Yet, there was precedent for Thomas with the previous DES cases. I would submit that the plaintiff's lawyers did a better job of explaining why that case should be used as precedent than the paint manufactures did attempting to distinguishing that case.

Yet a Judge who agrees with the argument because a "judicial activist" of the worst sorts.
But I have a problem with the use of such labels. You can point to every member on the SCOWI or the SCOUS and find "judicially active" decisions.

Take Diane Sykes who is now on the 7th Circuit Court of appeals. In Tietsworth v. Harley Davidson, she authored the lead opinion holding that intentional fraud is barred by the economic loss doctrine. Her decision effectively overturned 168 years of precedent and ensured that Wisconsin had the most liberal view of the ELD in the entire country.
Yet, she considers herself to be a judicial conservative.

Was it the right result? I do not believe so, but it was popular with WMC.

Anonymous said...

Super ID -
"I fear that with elections, the incentive is to do what is popular rather than what is right."

We've had elections since we had a constitution. I just tried to follow from what you said. If what you said is true, it must have been true from the start. If it wasn't true from the start, when did it change.

Our forefathers knew what options were available for selecting the judiciary. None are perfect but elections have served Wisconsin well from the start.

I think that the examples you used are good reason to have elections and not appointments. I'm of the opinion that appointed judges have done more harm than elected.

Anonymous said...

Super id,
You think the state bar should put forth candidates for judge spots. I think the lawyers make money based on judge's decisions. I think lawyers already make too much money and that is why our courts are stuffed with frivolous lawsuits.
I would prefer lawyers to have no say in what Judges are picked. There is a guaranteed conflict of interest in every appointment under that system.

Super Id said...

"You think the state bar should put forth candidates for judge spots. I think the lawyers make money based on judge's decisions. I think lawyers already make too much money and that is why our courts are stuffed with frivolous lawsuits."

If you were rating a professor, wouldn't you rather have the opinion of someone that took a class from that teacher than someone who might have heard something about them. I know I would.

Your comment about lawyers making money from judges decisions is curious. I am presuming that you are referring to trial lawyers, which is much narrower than the entire state bar, their money would come largely from Juries, and not the judges. So if your logic is correct, we should not elect judges because the electorate is members of the potential jury pool.

"Lawerys make too much money"--if only. The average starting salary for Wisconsin lawyers is around 45K. I know, very pricey.

But I am more disturbed by your display of socialism. Since when does a conservative want caps on income? I sure don't.

Anonymous said...

All right, I have to agree with the 'trial lawyers' aspect and would agree that people with a law background have a better chance of selecting a qualified judge than the general populace if trial lawyers were not included in the selection process. I think lawyers that actually get decisions from judges should not have say in their selection. I will even narrow it down further as far as the money comment went. I specifically meant lawsuit lawyers and I was thinking of the cap removals that have recently taken place when I wrote that. My apologies to the legion of lawyers that it didn't apply to.
While specific dollar amounts may come from juries, limits on what can be asked for or allowed can come from elsewhere and it was a court of judges that repealed limitations and, as in the lead paint fiasco, give wider interpretations of who is liable. I do believe that out of control lawsuits are a major underlying cause of geometrical insurance increases.

50 years ago, people died from many things. Medical technology and our law system has changed that. Now many things can be cured, but our law system has made us come to believe that anything that can be cured must be cured. I do not agree.

And out of curiosity if you are willing, how much do trial lawyers with 5 or more years of experience make?