Paul Soglin says that "I don't get" his complaints about the Wisconsin Supreme Court's decision in Wisconsin Department of Revenue v. Menasha. It's not the Court's decision, he says, it is that WMC who filed an amicus brief in the case spent all that money in support of her election.
I do understand. Part of my objection was that a good deal of the commentary (Paul less so than others)claimed that Justice Ziegler's vote must have been payback to WMC. As I pointed out, the question before the Court is one on which many have disagreed. Someone can support Menasha's position without having been paid to do so.
But, Paul now says, it's not the decision, it's the way that the campaign was influenced - all that money creates the appearance of impropriety.
I understand that too, although I also think that the concept of an appearance of impropriety serves as a cover for a great deal of mischief.
But here's the thing. It's not so easy to address this problem without scrapping judicial elections. The idea that Justice Ziegler ought to have recused herself is unrealistic. Let's assume that Justice Butler had won reelection. Would Paul Soglin, Jim Rowen and One Wisconsin Now demand that he recuse himself in matters of interest to the plaintiff's bar, WEAC and other public employee unions. They all spent massively on his behalf although it is hard to know precisely who spent what since it is all bundled under the auspices of the black hole known as the Greater Wisconsin Committee.
I wouldn't. In fact, I would argue that the strong presumption ought to be that he sit since he was elected by the voters to be part of a multi-member court deciding cases by a vote of the members. When a justice stands down, the popular will with respect to who is supposed to be participating in these cases has been frustrated. Sometimes it can't be avoided, but recusal should be rare.
Public financing won't solve the problem either. As I suggested here, there is no way - and probably should be no way - to stop interested parties from being heard on issues affecting an election. Nor may it be possible to increase public financing on behalf of candidates who face oppositional independent spending.
We could, of course, appoint judges but that does not eliminate the politics, although it may make it a bit more opaque.
I am, as I have said, something of an agnostic on judicial elections. If we are to elect judges, it has to be predicated on an assumption that we trust voters to make the right decisions. And we trust those that they elect to approach cases, not without existing views on the role of courts and judicial hermeneutics, but with an open mind and intellectual integrity.
I have no reason to question that any member of the Wisconsin Supreme Court does otherwise.