Constitutional Amendment Needed for Picking Wisconsin Supreme Court Chief Justice

By Attorney Gregg Herman
April 6, 2015

On the ballot tomorrow, in addition to the election for associate justice, is an amendment to the Wisconsin Constitution regarding the method of determining the chief justice of the court.

In Wisconsin, the constitution can be amended by a resolution passed by two consecutive sessions of the legislature and then approved by the voters in a referendum.  This proposal has been approved by the legislature twice, so now it’s up to the voters.

Unlike the US SC, where the chief justice is specifically appointed by the President and approved by the Senate for that role, and most other states where the CJ is elected by the other judges, in Wisconsin the CJ is determined by seniority.  This is not totally unreasonable, as the senior justice will have the most experience with court procedure and the other aspects which go into being head of the court.  But, given the length of service on the court (the current associate justices average between 7 and 20 years), the additional time cannot be worth that much – being CJ can’t have that long a learning curve.

My main problem with the amendment is that it is really designed to diminish the power of the current CJ, Shirley Abrahamson.  While I disagree with CJ Abrahamson on some substantive issues (particularly in criminal cases) and question some of her work as CJ (particularly in her revamping of OLR, which solved none of the real problems and created some new ones), I have a great deal of respect for her.  She is a brilliant justice, hard working and committed to her ideals.

But overall, the amendment makes sense.  A CJ should not be a parade leader – marching ahead and hoping the others are following.  Rather, it should be someone who accomplishes his or her goals by the only appropriate means in a democracy – by consensus.  Electing a CJ would be conducive to that role, so, with some reluctance, I support the amendment.

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.