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6/26/2008
Wigderson: Politicization of the court - on steroids
Wisconsin State Supreme Court Chief Justice Shirley Abrahamson is already out there fundraising for the April 2009 election. Abrahamson does not yet have a declared opponent, but she has never run for re-election without opposition.
Unlike her past races, 2009 promises to be a difficult challenge for the chief justice. The recent trend is against her. Michael Gableman’s election over Louis Butler and Annette Ziegler’s election over Linda Clifford have demonstrated the public’s preference for judges who are not judicial activists.
Of course, Abrahamson’s campaign and her allies are aware of the trend. After the last Supreme Court race, some even tried to start a movement to end Supreme Court elections altogether. They wanted justices to be appointed by a body of lawyers and judges rather than held accountable to the general public. Fortunately this idea gained no traction beyond the increasingly liberal editorial page of the Wisconsin State Journal.
Abrahamson’s first fundraising letter is an attempt to demonstrate bi-partisan support for her re-election bid. Most disappointing to see on board the Abrahamson campaign is former Governor Scott McCallum, a Republican who should know better.
But no claim of bi-partisan support is going to protect Abrahamson from the likely onslaught of third-party advertisements, just as any Abrahamson opponent can expect third-party attacks as well. As liberal judicial philosophy becomes increasingly outcome-based rather than on the specific intent of the law and the state constitution, interest groups have an increased incentive to attempt influencing the outcomes of judicial elections.
Abrahamson has been at the forefront of the politicization of the court and the court’s decisions. It will not be surprising to see an all-out effort on both sides by special interest groups to control the terms of debate in next spring’s election.
After all, if given the choice of trying to elect a majority of 50 members of the state assembly (of 99 total) and 17 members of the state senate (of 33 total), or electing four members of the state supreme court (of seven total) and electing them one at a time, most special interests are going to prefer trying to enact their agendas through the state supreme court. This is the consequence of the liberal judicial philosophy of outcome-based decision making as it is embodied by Shirley Abrahamson.
James Wigderson blogs regularly at Wigderson Library & Pub.
COMMENTS
Shirley Abrahamson may not have an opponent yet, but the name calling has already begun.
James Wigderson blithely labels Chief Justice Arahamson a "judicial activist," which is shorthand among some folks for "a judge who won't take orders from WMC."
Wet-behind-the-ears political commentators may have some play book they're already using for the coming campaign.
Those of us who have been around for a few years and have watched and read Supreme Court decisions for decades know that Chief Justice Abrahamson doesn't fit into glib stereotypes.
One case, which immediately comes to mind because I reread it on the 25th anniversary of the decision, was Town of Fitchburg v. City of Madison (332 N.W. 2d 782 (1983), in which the Supreme Court disregarded legislative intent and the requirements of the law to declare Fitchburg a city under a law that was written for the then-town of Oak Creek to incorporate because it was adjacent to Milwaukee.
Chief Justice Abrahamson, on the losing side of the 4-3 decision, ripped the court majority for blindly going where no court had gone before. The other side even overturned its own earlier decision that Fitchburg wasn't a city. Justice Abrahamson's dissent is worth reading today if you want to know how judicial activism works.
Less than a year later, the Legislature came back and said it really meant what it said when it passed the Oak Creek Law in 1955.
That's why Fitchburg is an only child today -- no other towns next door to Madison were allowed to incorporate -- and is the beneficiary of judicial activism from four justices other than Shirley Abrahamson.
Rich Eggleston (Thu Jun 26 10:23:33 2008)
Oh yes, Gableman’s and Annette Ziegler’s election is a triumph of judicial conservatism? Perhaps if incompetence and unethical behavior is judicial conservatism. This blog is another example of the labeling and name calling that has nothing to do with the facts and nuances. We should get rid of electing judges if the knee jerk voters continue to dominate judicial elections. Who anyway has the expertise to determine a qualified judge? Not the public surely.
dave allen (Thu Jun 26 17:20:04 2008)
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