Bad Business: Wisconsin Supreme Court Elections

By Attorney Gregg Herman
March 25, 2015

The current Wisconsin Suprem Court election provides a good example of why electing judges is such a bad system.  For anyone not in Wisconsin (or who does not listen to the radio, which might be a smart move), the incumbent, Justice Ann Walsh Bradley is being challenged by Rock County Circuit Judge, James Daley.  Justice Bradley is perceived as the liberal based primarily on her votes on criminal cases, while Judge Daley is apparently being support by conservative groups.
To put my cards on the table, I do not have a dog in this race.  While philosophically, I have disagreements with many of Justice Bradley’s votes on criminal cases, I have long respected her intellect.  Unlike seemingly everyone else in this country, I try very hard to be able to disagree with, yet still respect, someone else.  But, neither side has asked for my endorsement or support (this might just be my ego, but that is very unusual – typically, both sides ask for my support, both financial and as an endorsement) so I haven’t publicly support either side.

Both sides are running troubling advertisements.  Justice Bradley is slamming Judge Daley for giving what appears to be a lenient sentence in a murder case.  While the facts certainly seem to make that sentence quite shocking, Judge Daley has been on the bench for almost 26 years.  To choose one case out of what must be thousands is a pretty weak argument.

Worse, the Daley ads attack Bradley for voting to reverse a conviction, also in a murder case.  Besides just selecting one case out of hundreds, the ad makes no sense.  It calls the defendant a “confessed murderer” who, if I’m hearing the ad correctly, says he pled guilty.  Then it says that Bradley voted to reverse the conviction based on a faulty jury instruction.  Excuse me, but if the defendant pled guilty why was there a jury trial?  Such nuances escape notice when the purpose of the ad is to scare listeners to vote based on fear.

All of this, of course, has little to do with the scholarship, intelligence and integrity which are the important attributes of a SC justice.  And, of course, even if Justice Bradley is lenient in criminal cases (and she is) those compromise a minority of the cases heard by the court.

The idea that the public is capable of deciding which candidate has the above attributes to the highest degree is, of course, absurd.  There is no way the general public can intelligently make this decision.  Rather, judges (for that matter, both trial judges and appellate ones) should be appointed by the governor from a list compiled from a committee comprised of respected lawyers and community leaders.   Then, the judge should have to be subject to a review by the voters on a periodic basis.

But to require a judge (or justice) to raise money affects the entire integrity of our legal system.  And to require them to run misleading advertisements in order to be elected denigrates the entire concept of what a judge should be about.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.