Sunday, April 13, 2008

Shark on dead tree

My latest column was in today's Crossroads section.


Anonymous said...

Nice article Professor, however, I notice that you don't mention retention elections nor merit selections. What about combining these two mechanisms with gubernatorial appointment? Gov. appoints, panel of "legal experts" either votes simply yes or no (simialr to the ABA's recommendation of federal judges), and every ten years the judge/justice stands for a retention election. This would remove some, although certainly not all, of the adversarial contention in the elections, yet still it would provide an opportunity for accountability. Chief Justice Hallows had a somewhat similar proposition near the end of his years on the court.

Joe C. said...

I am interested in Kessler's plan:

..."give the governor the authority to appoint Supreme Court justices. After a gubernatorial appointment, justices would have to be confirmed by a majority vote in the state Senate. At the conclusion of a 10-year term, justices would be automatically reappointed, unless 21 of the 33 members of the Senate vote against reappointment. If the justice is not reconfirmed by the Senate, the governor appoints a new justice."

What do you think?

Terrence Berres said...

1) Judge Adelman and Shelley Fite in their response to Judge Sykes, Judge Brennan, and Professor Esenberg, said "the Wisconsin Constitution created a powerful judiciary with a strong supreme court and contains no language justifying the critics’ avowed preference for the 'political branches.' [footnote omitted]" 'Exercising Judicial Power: A Response to the Wisconsin Supreme Court's Critics', 91 Marquette Law Review 425, 439.

2) "Gableman victorious".

3) Assemblyman Kessler begins his opinion piece in yesterday's Milwaukee Journal Sentinel "As articulated by the Founding Fathers, the judiciary is intended to be the least political of the three branches of government."

Charles said...

Mr. Esenberg:

Which of your arguments for elected Wisconsin Supreme Court justices is inapplicable to the United States? If none, do you advocate amending the US Constitution to elect Supreme Court justices? If not, why not?

Anonymous said...

Is Rep. Kessler out of his mind?

Everytime a liberal candidate loses an election is he going to threaten voters with taking the right to vote away?

The democrats appear to be trying to lead our goverment into totalitarianism. Voters beware, you'll have no rights if you keep electing people with this type of mentality.

Our forefathers gave us the right to vote for judicial candidates in the State of Wisconsin. They understood accountability to the people.

Joe C. said...

Anon 9:43,

The debate did not arise solely from this election.

Many of us considered the idea long before we knew which candidate would win.

Anonymous said...

Anon 9:43,

It's not just liberals who hate judicial elections. If you notice, so does the Prof--look at the post. He just thinks it's the best alternative. Many, many conservatives disagree and think the idea of judicial elections is totally juxtaposed to the very idea of an independent judiciary; one of those conservatives would be me, oh yeah, and Alexander Hamilton.

I don't know, but even though I am opposed to elections in the state judiciary, there are reasonable arguments for them that would be inapplicable to the larger nation as a whole. First of all, the smaller size of the state elctorate, and the fact that the judicial elections are removed from partisan races by several months, allows judges more air-time to explain what being a judge/justice is about, something most people probably have a distorted view on, and why they would be better at that job than the opponent (obviously, not much of that happend this election, at least from my view). Another reason may be precedent. The state constitution has always called for elections, there is noting in the federal constitution that prohibits it, there has not been any "parade of horribles" resulting from elections (this was only the second time, I think, a sitting justice had been ousted), so why change now (probably the most practically persuasive argument available).

Republicrat said...

Aside from the merits of these systems, anon 9:43 does depict the difficulties of changing our system, which would require, as Kessler proposed, a constitutional amendment. Good luck convincing voters that you need to take away their right to vote for supreme court justices. It was popular opinion (unions were very vocal against any change, if I remember correctly, although I suspect they'd play a different tune today) that sunk C.J. Hallows' suggested revision.

Anonymous said...

anon 2:16 -

appointing judges gave us abortion that has taken est. 50 million innocent lives. It gave us Everson and so on and you say that you support it as a conservative?

Wisconsin forefathers knew the options and decided that judicial elections are best. As you pointed out, they do work well and maybe now people are starting to pay a little more attention to them.

Anonymous said...

joe c-

Why don't you all level with people and share your real fear about the upcoming election.

If we would have some system as proposed by Kessler our Chief Justice would no doubt have no worries about staying on the court. However, the election proposes accountability to the people the court serves and they just might decide that it's time for a change.

I do not believe that it's the elections that change the image of the court. It's what judges do and don't do that shapes people impressions. Changing judges by elections helps to improve the image.

Joe C. said...

Anon 3:02,

First, don't get too big for your britches. Incumbent justices generally win.

Second, the Kessler proposal will take time - two sessions of the legislature and a public referendum.

I am fine with waiting until after the upcoming election. There are valid arguments on both sides of the issue and they should be explored before making any changes to the state's constitution. The more deliberative the process, the better.

Anonymous said...

Anon 2:49,
You really think that if Roe. v. Wade was never decided that Wisconsin would be free of legal abortions, especially after this last run of a liberal majority.

Of course, that is just another reason to oppose judicial elections--ideology supplants legal doctrine too often when the judiciary becomes beholden to the people (remeber we are in the minority when we oppose legalized abortion). Edward G. Ryan, a delegate at the state constitutional convention and former Chief Justice, believed that an elected judiciary was seemingly at odds with the basic functioning of the institution arguing that “[t]he function of the judiciary is interpretation, and interpretation cannot be a representative function” for the judiciary “represents no man, no majority, no people. It represents the law of the land.”

Anon 9:51, 2:16

Anonymous said...

Anon 5:14 said -
"You really think that if Roe. v. Wade was never decided that Wisconsin would be free of legal abortions, especially after this last run of a liberal majority."

Yes I do and Wisconsin has the law on the books to prove it.

Appointed Judges have done more damage to the law than elected, is my view. Even those that were appointed prior to being elected.

Taking peoples vote away because Butler lost is one of the dumbest things I've ever heard of in a long time. That is the only reason this is being pursued and quite frankly, I think those elected that are in pursuit of this should be voted out.

Last week Obama made some statments that only Marx/Lenin would have awarded him for. I think taking away peoples right to vote would be even more highly esteemed by them.

Anonymous said...

Anon 5:40,

True, the abortion statute is on the books, but my point is that it would have been struck down as unconstitutional under Wisconsin's constitution under some crazy-ass rationale similar to what the U.S. Suprme Court did anyway, especially as popular opinion has shifted towards the "pro-choice" position (after all, your argument for elections is to ensure the judiciary is accountable to what the people want and most want abortions legal).
Again, my side won this time out (what will your opinion be if the electorate shifts in the other direction--something quite plausible given the dichotomous split in most elections today) so I am not against elections because of the outcome. I am against them because the judiciary is not a popularity contest and it should not be a representative institution. I can't beleieve I agree with him, but check out illusorytenent's post on the subject--he makes some good points on the advantages of an "elite judiciary." It sounds bad to frame it like that, but the judiciary should be above the people in the sense that the people already passed the laws they wanted through the legislative process. It is the judiciary's job to tell the people the legal effect of their words; if they want it changed, the people always have that option through legislation or an amendment.
By the way, I don't think Marx or Lenin could be much happier with anything more so than with Sen. Obama.

Anon 9:51, 2:16, and 5:14 (busy day here!)

Anonymous said...

anon 8:08 -

I highly doubt that abortion would ever have been legalized by the Supreme Court if it was elected rather than appointed. Had the Supreme Court struck down Roe, the State Statute would have been emboldened, not vunerable. Moreover, I believe even in this day that the majority of people are opposed to abortion and not in support of it. At least the surveys I've seen indicate that and the people I talk to seem to be opposed to abortion (both democrat and republicans).

I think it's complete nonsense to think that an appointed judiciary will be less political. It will be just one more way to silence the people and keep them out of goverment so that goverment can do whatever it feels like doing.

Kesslers proposal should be called the "sour grapes" bill because that is what it is. It's people that are saying if you don't vote for my candidate I will take your vote away. I think those people should be replaced.

Anonymous said...

anon 8:08 -

regarding "it" , he's in full support of our courts being filled with liberal judges that have given us abortion, Everson and so on. He actually thinks that no one can speak as a Christian in public places.

Like most lib's he doesn't care about the founding or history of this nation, he only cares that liberal and aethiest actions are somehow made law. That means if you cannot get it done through legislation; that you must have judges that get it done for you.

That is what has been happening since Everson and what they want to continue by trying to get judicial appointments in the State.

Here's a quote for you from the Senate Judiciary Committe 1853-1854 report regarding the founding fathers intent for the judiciary:
"they did not intend to spread over all the nation the dead and revolting spectacle of atheistical apathy."

That is what "it" represents by his babbling.

Joe C. said...

There is more babbling on this comment string than I have heard coming from Kessler or his supposed "atheistic" supporters.

It is often true that long awaited changes to public policies do not take place until a salient event motivates legislative action.

The Kessler proposal is not unique in this regard, nor is it the first proposal to garner the public's attention.

Anonymous said...

joe c -

I think I recall one time that someone said that you are like talking to a drunk at the bar... so why not just face that Butler lost and forget about trying to demean the voters and the system that defeated him.

Joe C. said...

If I argue "like a drunk at a bar," it is because people like you refuse to argue the issue at hand and instead meander around it.

Reread your comment and tell me what part of it is an argument in favor of the elected system.

And, by the way, the "drunk in a bar" comment was made on account of my defense of Justice Ziegler (when some liberals were calling for her removal from office). Ironic.

Anonymous said...

Well, gee Joe, Kessler attempting to take away peoples right to vote is the issue.

Joe C. said...

I give up.

My point is that you are not addressing why the elected system should be preferred to the appointed system.

You throw around the terms "sour grapes" and "liberal" and then make personal attacks.

I find this form of argument, if you call it that, unpersuasive.

Anonymous said...

joe -

I already have the right to vote and no argument will convince me to give it up. I really don't think that is hard to understand.

Moreover, I see this as a threat because people didn't vote for Butler. Many points were made by many people. Because you don't like them or understand them is not our problem.

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