A Cheesy Way To Pick A Justice

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

The race is between a fellow named Louis Butler, an incumbent on the court, and a fellow named Michael Gableman, currently a lower court judge. Butler is black. Gableman is white. Here is a television commercial (bought and paid for by a third-party group favoring Gableman) which offers a flavor for the race for the seat on the highest court in the state. After demonizing politicians the masters of this dark art have expanded their operations to focus upon soiling the reputations and records of judges. "Butler sides with criminals 60 percent of the time," sleazes the ad, as if there is a batting average for justice.

It is clear from the startling, sickening Butler attack ad, and from strong trends nationwide, that judicial "selection" is being replaced by judicial "election." Whereas we once more or less trusted our judges to be wise and fair bulwarks against the tyranny of the majority we now, by requiring them to stand for public election, require them to share our partisan views instead of some independent, objective loyalty to the rule of law. Whereas we once liked our judges to be removed from the heat and grime of politics we now demand it.

This portentous development explains why there are so many sitting judges on television these days promising the electorate - potential litigants before them - that they will decide cases a certain way if they are elected. What about impartiality and a judge's sworn duty not to prejudge facts and issues before they are presented? It's morphed into Willie Horton-like ads and promises of future votes in future cases. And there is plenty of ammunition, of course, since every decision a judge makes, no matter how valid or not, generates at least one enemy (the losing party).

For example, in South Carolina recently, a judge named Don Beatty was the subject of this odious commercial before he was nominated, by the state legislature, to that state's highest bench. America, it seems, wants to turn its judges into politicians knowing all the while that this transformation subverts the very essence of what it means to be a judge. To promise to vote a certain way in a case, before it reaches the bench, is after all the antithesis of the crucial function our judiciary is supposed to perform. If we go into court knowing we cannot win regardless of fact or law we might as well close the courthouse doors.

Judging from trends tracked by the Institute for the Advancement of the American Legal System among other groups, it is apparent that as a society we would rather have a larger role in picking deflowered judicial candidates - any candidate who encourages, allows or tolerates the Beatty or Butler ads is hereby so defined - than have smaller role (or very little role) in choosing professional, experienced jurists. We'd rather buy the pig in the poke we can see. Why leave a "bad" decision (read: a decision you happen to disagree with) to chance?

Such a calculus might not make sense to you or me but it makes sense to the people who speak on behalf and in favor of The Wall Street Journal's editorial page. Rupert Murdoch's new paper recently made the case that judicial selection - the process by which seasoned attorneys and former judges, working in tandem with state judicial authorities, select new judges - invariably tilts toward so-called "trial lawyers" and thus toward anti-corporate, anti-government and anti-conservative principles. This is despotic, cries the Journal, and far from "our democratic ideals."

What's the difference, the Journal implies, between special interest groups "buying" the elections of judges through political tricks and negative advertisement and the "trial lawyers'" lobby influencing the selection of judges through the old-fashion appointment committees? Well, the first difference is that the Journal's "lawyer cabal" simply doesn't exist or, if it does, it certainly hasn't done much good. With a few notable exceptions, state supreme courts are conservative in word and deed. And, even where they are not - in Massachusetts for example - I am aware of no torch parades up to the castle gates by angry mobs.

Another difference is that the "old" way didn't force judges to appear on billboards or to otherwise make jackasses of themselves on television falling all over one another promising to do the people's will. Moreover, nasty third-party special interest groups - the folks who brought us the Butler ad - weren't generally involved in judicial selections until they became judicial elections. Finally, another difference is that there was less disconnect before between perceptions of federal and state court judges.

For example, it's hard to reconcile the lengths to which state court judicial candidates are willing to go to share their views about contested legal issues with the miserly way in which our recent nominees to the United States Supreme Court have shared such information. We complain, for example, when nominee Samuel A. Alito, Jr. stonewalls on sharing his conclusions about "future" cases even as we absorb plenty of conclusions from his state-court brethren. The former only damages the nominee's credibility. The latter undercuts the foundation of the legal system.

The issues and interactions here are complicated. But the core of the debate is simple. What do we want and expect for and from our state judges? Do we want them merely to rubber stamp what the majority decides it wants out of the law despite the Bill of Rights and other protections designed to protect individual rights? Do we want judges to make a political calculus every time they make a legal one? Do we want to open every single controversial judicial decision to partisan political attack? And, if so, what does that tell us about what our state judiciary ultimately will look like?

It tells us that our state courts are going to start looking remarkably like our state legislatures. It tells us that there will be fewer checks against fleeting populist will (as channeled or duped by special interest groups). It tells us - at a time when good judges already are at a premium - that courageous lawyers willing to take courageous and unpopular stands, will decide instead to forego the opportunity to serve on the bench. It tells us that political hacks will take their place. And that does not bode well, ultimately, for you or me.

Some elections are about change. Tuesday's judicial election in Wisconsin is a vote about resisting change; short-sighted, invidious, cynical change - coming to a ballot box on April Fool's Day - is worthy of your attention, if not your disbelief.