Candor in the Supreme Court Race

Yesterday I had the opportunity to appear as a guest on Charlie Sykes show, Vickie McKenna's Madison program and a morning show in Fort Atkinson discussing the Supreme Court primary. Throughout the day, I had occasion to think about how much we lawyers and legal academics try to hide the ball on questions of judicial selection.

On the one hand, we have charges of judicial activism largely hurled by conservatives at liberals. I have done it and its not all wrong. In the modern era, the development of methods of interpretation that maximize a judge's discretion, i.e., give her greater leeway to depart from unambigiuous text or some notion of its original meaning has most often been championed in the course of reaching or advocating for results that we would call "liberal" or "progressive." It hasn't always been that way and there is no ironclad rule that it has to be that way (text and original understanding will not always lead to "conservative" results), but that's been the general lay of the land.

Of course, the allegation of activism and call for something like strict construction is an oversimplification. No one - at least no one since Bill Douglas - thinks that judges can do whatever they want and no one really believes that judging (at least at the level of law development) is a technical exercise from which all value and ideological judgements can be excluded.

If that's so, we are all, to a greater or lesser degree, judicial activists. So there is some truth in the standard liberal rejoinder that charges of "activism" can be misleading. But to say that the concepts of "activism" and "restraint" are meaningless or that judges don't differ in interpretive method is also an oversimplification. Both sides draw caricatures.

But there is an ironic twist to this.

Judicial candidates who claim the mantle of restraint also tend to tell us how they will exercise whatever amount of discretion they have. They claim to be "conservatives" so that, it turns out, we know that when they feel free or compelled to make ideological judgments they will do so from a more conservative perspective. So Justice David Prosser tells us that he is a champion of judicial restraint. I think that he is. But he also tells us that he is a conservative.

Candidates who abjure charges of activism - generally because they believe that judges must resort to their own values and ideology to a greater extent than is commonly supposed - tend not to tell us what values and ideology they hold. They deny being activists. They may even say that they believe the charges of activism is meaningless.

But they don't tell us how they see things. We know, for example, that candidates such as Marla Stephens and Joanne Kloppenburg have problems with the current conservative majority on the Court. But they won't match Prosser's candor. They won't tell us that they are liberals.

This isn't because they are dishonest people or because they fail to understand how ideology matters. It is because it would be political suicide. Voters tend not to want "liberal" or "progressive" judges, largely because of concern about criminal justice issues and the left's postwar project of judicially mandated social change.

Although I dislike the word "activism," I believe that it does make some sense to talk about the degree of a candidate's commitment to judicial restraint. But I also recognize that ideology - at least at the level of the Wisconsin Supreme Court - still matters. There is often room for a judge's values to influence a decision. In fact, it is sometimes impossible to make a decision without them. So when I hear candidates say that their ideology is irrelevant, I roll my eyes. They are hiding the ball.