Thursday, March 29, 2007

The relationship between judicial restraint and judicial independence

Retiring Justice Jon Wilcox is concerned about the tone of the Supreme Court race and the amount of money it attracts. He is concerned that it creates a perception that judges must be on "one side or the other."

I am sympathetic. While there is a sense in which judges are on a particular "side," it is not - even with judges whom I might regard as more "activist" and "results-oriented"- not quite the same as a politician being liberal or conservative, Democrat or Republican. Even "unbound" judges operate within closer quarters.

But the money and the heat seem to be inevitable consequences of the court's more aggressive use of its authority. If the court is going to take on more and more of our collective decisionmaking and if it is going to treat statutory and constitutional text more as starting than ending points, then the rest of us are going to increasingly see them as just another set of political actors. We will be less concerned with lawerly virtues and more interested in ideology, since that it what we're going to get anyway.

We can decry all the special interest money but that money is being spent by people who know what is at stake here. And I'd suggest that the it is not the money that causes judges to "take sides" but "taking sides" that brings in the money.


xoff said...

Lest we forget, Justice Wilcox, so worried about the court's image, was fined for more than any campaign in state history for breaking the law in his 1997 campaign. The violation? Illegally coordinating with special interests. Story.

Dad29 said...

Thanks, Xoff, for the irrelevancy.

I hold no particular brief for WMC. But it's clear that they are sending distress signals through their advocacy.

Maybe envisioning the State of Wisconsin minus all WMC members would be helpful in making a decision...

Anonymous said...

How it is irrelevant to point out that the guy who is crying about special interest influence on supreme court elections was hit by heavy sanctions for---- special interest group campaign violations?

Oh Yeah. It's not relevant because he is a conservative, just like Ziegler's utter inability to grasp simple ethics conflicts is nt at all relevant to her ability to join the highest court in the state.

Your hypocrisy/forced ignorance makes me a little ill.

Anonymous said...

I think that the money flowing into this race is explained by something much simpler (and less dark) than what you suggest, i.e., that the court has been expanding its role.

The fact is that w/ 10 year terms and near-invulnerable incumbency, taken together with the personnel history of the court - this is one of those very rare instances where the character of the court will be significantly decided in an election. i think its that simple.

Anonymous said...


Does it feel good to be a hall monitor?

The reason the comment is irrelevant here is that our genial host simply used the observation as a launching point for a substantive argument, with which the commenter in his irrelevant way fails to engage.

Had our host inserted a parentheses after his citation of Wilcox saying "deuced hypocrite that he is" it wouldn't have altered the course of the post.

The link XOFF provides, one is interested to note, is a startling story of a state agency run amok. They appear to have violated the free speech rights of two individuals by ordering them not to engage in politics.

Which reminds me--XOFF, as a "commenter for Clifford" have you filed your independent contribution form yet with the SEB? Cuz if not, you might be in trouble.

Mpeterson said...

What I'm most curious about are the values WMC sees in Annette Ziegler and hopes, thus, to enshrine on the Supreme Court.

It's a puzzler -- but big manufactures are typically less interested in values than they are in efficiencies, so maybe that's the answer. Guaranteeing the rights of individual citizens is, of course, famously inefficient.

James Wigderson said...

What Bill Christofferson neglects to mention is that he worked for Kelly, and green postcards or not his candidate was a complete loser. 62% to 38%, and he lost every single county.