Rebecca Love Kourlis, a former Colorado Supreme Court justice, lays out in a Milwaukee Journal Sentinel commentary a strong recommendation for changing the way Wisconsin selects its justices — and she also urges switching from elections to an appointive model.
“Sometimes, things have to get really bad before they can get better,” writes Kourlis, pointing to a consensus both in Wisconsin and the nation that ”divisiveness on the state’s high court benefits no one – least of all the citizens of Wisconsin.” Kourlis is executive director of the Institute for the Advancement of the American Legal System, a JAS partner.
A bipartisan proposal for an appointive model in Wisconsin recently was floated in the wake of an allegation by Justice Ann Walsh Bradley that Justice David Prosser put her in a chokehold (the justices appear in photo).
That episode has focused attention on rancor on the court. Kourlis suggests that the current situation may be tied to the 2008 Wisconsin Supreme Court election, a nasty contest that led to a court deadlocked over the question of sanctioning one of its own for false statements in a campaign ad.
The 2008 race “seemed to have set a bar, only to have it exceeded,” Kourlis continues. She touches on this year’s highly contentious Supreme Court race that featured what some called “the mother of all attack ads” and a record $4.5 million in campaign spending by labor and business groups.
Turning to reform, Kourlis calls for Wisconsin to find ways to strip the “political component” from its Supreme Court elections. She discusses her own appointment to the highest court in a state that uses merit selection, retention elections and a judicial performance evaluation system.
“When our names appeared on the ballot for a yes/no retention vote, the voters had the benefit of objective evaluations of our performance on the bench,” she explains. “We were spared the necessity of raising money, running attack ads against our opponents and speaking about our political views.”
Moreover, Kourlis adds, ”Keeping politics out of the public process also served to keep them out of the private process. My colleagues and I disagreed – but always with respect for each other.”
The proposal she mentions for reform of Wisconsin’s selection system involves screening of applicants by a judicial selection commission, gubernatorial appointment and Senate confirmation. It has been floated by state Sens. Tim Cullen, a Democrat, and Dale Schultz, a Republican (see Gavel Grab).
In 24 states that use merit selection to pick appellate judges, there are empirical studies showing enhancement of judicial impartiality, Kourlis writes. She also points to the fact that in surveys, about three out of four Americans believes campaign cash influences decisions made by judges in the courtroom. Kourlis concludes:
“What are you waiting for, Wisconsin? Certainly no one can say there is not a problem. The only debate is what the solution should be. My personal experience and objective research support the Schultz-Cullen answer.”