2008/11/17:Growing partisanship marks Wisconsin judicial races - Wisconsin Democracy Campaign

Growing partisanship marks Wisconsin judicial races
Wisconsin State Journal
November 17, 2008

Speaking before a Middleton banquet hall filled with judges last week, Wisconsin Supreme Court Chief Justice Shirley Abrahamson pronounced the state courts "a model for the nation" because Wisconsin judges run for office free of political party ties.

"We do not work for special interests, associations, advocacy groups or political parties of any kind, pro- or anti-anything," Abrahamson told the jurists assembled for the annual Wisconsin Judicial Conference. "We work for the 5.6 million people who call this great state home. They are the 'all' in 'justice for all.' "

The prohibition against partisanship is even written into the state's Code of Judicial Conduct, which restricts judges from belonging to or seeking the endorsement of any political party. Judges are exhorted "not (to) appeal to partisanship" and to "avoid partisan activity." Violators risk discipline ranging from a reprimand to suspension or removal from the bench.

But partisans seeking to elect their chosen candidates to the seven-member court have found a loophole big enough to drive a campaign bus through, as recent Supreme Court races demonstrate.

In the waning days of this spring's campaign, the Virginia-based Democratic Judicial Campaign Committee (DJCC) jumped into the fray as an independent group, making hundreds of thousands of phone calls worth up to $30,000 on behalf of incumbent Justice Louis Butler.

As a countermeasure, then-Burnett County Circuit Court Judge Mike Gableman accepted $30,390 in in-kind contributions from the Republican Party of Wisconsin in the form of last-minute phone calls. Gableman won the 10-year seat on the bench, 51 percent to 49 percent.

In her campaign last year, Justice Annette Ziegler got $1,000 from four local Republican Party organizations. The DJCC also weighed in on that race, making last-minute fundraising phone calls and sending letters on behalf of attorney Linda Clifford, at an estimated value of up to $20,000, said David Browne, a spokesman for the organization.

The DJCC contributions were made as independent expenditures and did not require the approval of either Clifford or Butler's campaign.

In the 2000 race, Justice Diane Sykes got $7,895 worth of in-kind contributions from the state Republican Party in her successful bid to keep her seat on the Supreme Court.

Despite the growing partisanship, Jim Alexander, executive director of the Wisconsin Judicial Commission, said no disciplinary action has been taken against judicial candidates for accepting party donations because the code doesn't ban it.

"There's no specific prohibition in the code regarding the acceptance of contributions from a partisan political party," Alexander said. "Judges are prohibited from appealing to partisanship. Whether or not any financial contribution activity would violate that provision, I don't know."

A spokesman for Justice at Stake, a Washington, D.C.-based group that advocates for an independent judiciary, said Wisconsin Supreme Court races have become similar to contests in eight states, including Michigan and Ohio, that have partisan judicial elections. A study by the Wisconsin Democracy Campaign last winter found that big Democratic donors were almost uniformly giving to Butler while major Republican contributors were donating money almost exclusively to Gableman.

"Even though it (Gableman-Butler race) was technically a nonpartisan race, there was nothing to distinguish Wisconsin from some of the nastiest partisan races in 2008," Justice at Stake spokesman Charlie Hall said. "Wisconsin now has essentially partisan elections with this (nonpartisan) fig leaf attached."

Milwaukee County Circuit Court Judge John Siefert would like to do away with the facade. Siefert, who served two terms as a Democratic Milwaukee County treasurer, wants to rejoin his party and proclaim that affiliation when he runs for re-election in 2011.

Siefert has sued the Judicial Commission in an effort to force it to drop its restrictions on party membership and affiliation. The suit, pending in U.S. District Court in Madison, also would allow judge candidates to directly solicit funds rather than having a committee do the asking.

Siefert allges the code restrictions are a violation of his constitutional rights to free speech and association. He said being allowed to proclaim his partisan affiliation will help him fight back against well-funded Republican groups that he said seek to install judges who will "govern from the bench." Siefert said he supports keeping party labels off the ballot but allowing judges to draw on the backing of political parties.

"I am trying to free judges to speak out on the issues, so that judicial campaigns will be driven by ideas, not money," he said. "Instead, too often it is not a matter of what the judicial candidate stands for, but who can spend the most money on television advertising to buy name recognition."

Lawyers for the state argue that wiping out the restrictions would set the stage for even uglier and more expensive contests in Wisconsin, which already have topped the $6 million mark.

"It is clear that the nonpartisan judiciary is an integral part of Wisconsin government, and that (Siefert's) arguments would lead to a sea change to the entire system of government," the state argued in its response to the suit.

Siefert believes the tide already has turned. "I am not trying to politicize judicial campaigns," the judge said. "They are already political."

Hall said allowing political parties to dominate the process will make matters worse, not better. In the just-concluded high court race in Michigan, the Democratic candidate was labeled a "terrorist sympathizer" while the Republican candidate was pictured as asleep on the bench.

"Partisan elections bring out all of the worst aspects," Hall said, "and they have the worst effect on eroding public confidence in the courts."