Fixing Wisconsin’s Dysfunctional Supreme Court Elections

7/27/2019 Fixing Wisconsins Dysfunctional Supreme Court Elections

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Fixing Wisconsins DysfunctionalSupreme Court Elections

A Single, 16-Year Term Could Minimize the Infuenceo Campaign Cash

Billy Corriher July 2013

WWW.AMERICANPROGRESS.O


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Fixing WisconsinsDysfunctional SupremeCourt ElectionsA Single, 16-Year Term Could Minimize the Infuence

o Campaign Cash

Billy Corriher July 2013

COVER PHOTOSue Gatterman, seated second rom let, Barbara Schrank and Fred Schrank, ngers crossed, supporters or Wisconsin Supreme Courtcandidate JoAnne Kloppenburg, all watch election results in the supreme court race between Kloppenburg and incumbent David Prosserin Madison, Wednesday, April 6, 2011.

AP PHOTO/ANDY MANIS


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1 Introduction and summary

4 Collegiality falls apart

7 Consensus falls apart

10 Campaign cash: The source of division

13 Fixing whats broken: Keeping politics out of the courtro

17 Conclusion

22 About the author and acknowledgements

23 Endnotes

27 Appendix

Contents


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1 Center or American Progress | Fixing Wisconsins Dysunctional Supreme Court Elections

Introduction and summary

Judicial elecions have changed dramaically in he pas wo decades as he amoun

o money spen o elec judges has skyrockeed.1 Special ineress and poliical par-

ies have poured money ino supporing heir avored candidaes or sae supreme

cours. In recen years he Wisconsin Supreme Cour has oered perhaps he mos

dramaic illusraion o wha happens wih cours suering rom oo much poliics.

In our sysem o governmen, judges inerpre and apply laws o siuaions involving

wo or more paries. Sae supreme cour jusices are he nal inerpreers o saeconsiuions, which means ha he judiciary is responsible or holding sae legisla-

ures and governors accounable i hey violae sae consiuions. In he Federalis

Papers, Alexander Hamilon explained ha judicial independence is crucial o

ensuring ha legislaors do no enac laws ha are popular bu unconsiuional. 2 I

he judiciary is subjec o he same poliical pressures as legislaors, however, hen i

canno serve is vial role as a check on he poliical branches o governmen.

Elecions also oer he opporuniy or liigans and atorneys o inuence he

judges hearing heir cases hrough campaign conribuions or independen spend-

ing in judicial campaigns. Te resuling conics o ineres can be more harmul

han atemps o curry avors wih legislaors because he decisions o judges,

unlike hose o legislaors, can impac a single individual or corporaion.

Tese concerns have become more urgen in Wisconsin, where he amoun o

money spen in high cour elecions has risen sharply in recen years, saring wih

a $3 million race in 2007.3 In he 2008 and 2009 high cour races, candidaes raised

around $1.7 million and more han $800,000, respecively.4 Independen spending,

however, ar exceeded he direc campaign conribuions in boh elecions.

Fair-cours advocaes esimae ha one independen spender, Wisconsin

Manuacurers & Commerce, he saes chaper o he U.S. Chamber o

Commerce, spen more han $2 million in high cour races in 2007 and 2008.5 Te

group criicized he cour or some o is rulings in produc liabiliy and personal-


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injury cases.6 In he 2008 race, 90 percen o he money spen on ads came in he

orm o independen spending ha was osensibly unaliaed wih he candidaes,

and hese independenly unded ads were overwhelmingly negaive.7

Independen spending grew even more in 2011, wih a leas $3.5 million spen

on elevision ads.8

Te re-elecion campaign o conservaive Wisconsin SupremeCour Jusice David Prosser was suppored by more han $2 million rom con-

servaive groups and big-business groups.9 Nearly hal o his money came rom

a secreive group aliaed wih Americans or Prosperiy, he conservaive group

backed by billionaires Charles and David Koch10 ha ran misleading atack ads

agains Jusice Prossers opponen, hen-Assisan Atorney General JoAnne

Kloppenburg. Te elecion occurred while he cour was considering a legal chal-

lenge o Gov. Scot Walkers (R-WI) ani-collecive bargaining bill, which would

have negaively impaced Wisconsin labor unions. Groups aliaed wih he labor

unions suppored Jusice Prossers opponen wih more han $1 million in ad

spending.11 One o he groups supporing Kloppenburg, he Greaer WisconsinCommitee, ran an ad accusing Jusice Prosser o ailing o prosecue a pries who

sexually abused children when he was a prosecuor in 1978.12

Tese biter poliical batles led o a sharply divided bench as consensus became

scarce. Te schism in he high cour grew even wider as he sae was orn apar by

he gh over Gov. Walkers ani-collecive bargaining bill. As he cour was deliber-

aing a challenge o he bill, Jusice Prosser was accused o choking a ellow juris. 13

Jusice Prosser also called Chie Jusice Shirley S. Abrahamson o he Wisconsin

Supreme Cour a oal bich, adding ha he would desroy her in a war. 14

Te Wisconsin high cour has now spli sharply ino liberal and conservaive

acions, even hough he oce o supreme cour jusice is osensibly nonpar-

isan. Beore his poliicizaion, he cour enjoyed a record o many unanimous

decisions. I has goten so bad ha he cour has even salemaed over ehics

decisions involving is inghing and he physical alercaion involving Jusices

Prosser and Bradley. A 2011 poll ound ha only one-hird o Wisconsinies had

condence in heir high cour.15

Te Sae Bar o Wisconsin appoined a ask orce o sudy he problems surround-ing Wisconsins high cour elecions. On July 1, 2013, he ask orce proposed a

consiuional amendmen o elec he jusices o a single, 16-year erm beginning

in Augus.16 Te repor argues ha such a sysem would improve public percepion

o our judicial sysem and promoe collegialiy. Te proposed consiuional


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amendmen would preven anyone rom being eleced o he high cour more han

once, bu i would allow he curren jusices o run or anoher erm.17

Te ask orce argues ha limiing jusices o one long erm would remove polii-

cal pressure rom heir jobs. Once on he bench, he jusices would never again

have o solici campaign cash or seek suppor and approval rom individualsand groups wih ideniable poliical perspecives and economic agendas.18 An

amendmen o he sae consiuion requires approval by wo consecuive erms

o he legislaure, ollowed by approval by ciizens in a reerendum.19

I he amendmen wins approval, Wisconsin would become he only sae ha

limis eleced jusices o a single erm, alhough hree saes appoin jusices or lie

or unil a mandaory reiremen age.20 Te 16-year erm would become he longes

erm or any eleced judge in he counry. Te only oher saes wih comparable

erms are New York, which holds reenion elecions or is high cour judges

every 14 years, and Wes Virginia, which currenly has he longes erm12yearsor high cour seas lled hrough conesed elecions.21

Tis proposal is a big change, and i may seem drasic, bu he repuaion o

Wisconsins high cour is in aters. Te cour has become jus anoher poliical

branch o governmenwih all o he baggage ha poliicians bring o heir

jobs. Special ineress spend overwhelming sums o money on poliical ads or

candidaes whom hey hink will rule in heir avor. Te cour now uncions like a

biterly divided poliical body, issuing more divided rulings wih clear liberal and

conservaive acions.

Te proposed consiuional amendmen could address hese problems because

he jusices would never again have o run or re-elecion once hey are on he

bench. Some have raised concerns, however, ha spending per elecion will

increase because special ineress will have ewer chances o inuence he compo-

siion o he cour. Alhough his concern meris urher sudy, Wisconsin needs

o hink big in erms o reorming is judicial elecions, and his proposed consiu-

ional amendmen could be jus wha i needs.


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Collegiality falls apart

Te poliical pressures weighing on he cour reached a breaking poin in 2011,

as he jusices were considering a legal challenge o Gov. Walkers bill o limi he

collecive bargaining righs o public employees. Te bill was he subjec o an

epic batle, as conservaive legislaors and big business ough liberal legislaors,

unions, and pro-labor proesors.22 Gov. Walkers legislaion had been challenged

by unions, which argued ha he bill violaed he saes open-meeings law ha

requires 24-hour noice o legislaive meeings.23 Even hough legislaors posed a

noice less han wo hours beore a meeing on he bill, conservaives on he highcour rushed hrough a 4-3 opinion ha rejeced he legal challenge o he bill jus

days afer hearing oral argumens.24

On he evening o June 13, 2011, he day beore he cour released is opinion,

he slim conservaive majoriy waned o immediaely issue he opinion or a press

release anicipaing he opinion.25 Bu Chie Jusice Abrahamson was sill wriing

her dissen, in which she quesioned he need or such a speedy resoluion o he

appeal.26 Jusice Prosser and he oher conservaive jusices wen o Jusice Ann

Walsh Bradleys oce, where he chie jusice was discussing he dissen wih her

colleague.27 Afer Chie Jusice Abrahamson old hem ha her dissen would no

be ready ha day and ha a press release would no be issued, Jusice Prosser old

her he had los aih in her leadership.28

Jusice Bradley hen approached Jusice Prosser and demanded ha he leave her

oce. Jusice Bradley said, [ Jusice Prossers] response was o grab my neck,

wrapping boh hands around i in a ull circle.29 Alhough Jusice Prosser old

police invesigaing he inciden ha he could no recall how many ngers he had

around her neck, he jusice admited ha his hands could eel he warmh in

Jusice Bradleys neck.30

No surprisingly, he jusices who winessed he assaul could no agree on wha

happened. Jusice Prosser claimed ha Jusice Bradley rushed a him wih her

ss raised and ha he ouched her neck while assuming a deensive posure.31


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Jusice Gableman, a ellow

conservaive, claimed ha

Jusice Prossers hands were

never around [Jusice

Bradleys] neck a any poin.32

Conservaive Jusice PaienceRoggensack agreed33 and old

Jusice Bradley, You ofen

goad oher jusices by pushing

and pushing in conerence in

a way ha is simply rude and

compleely nonproducive.34

Jusice Roggensack old her

ha Jusice Prosser is no a

man who atacks ohers wih-

ou provocaion.35

Te physical conronaion

no wihsanding, why did Jusice Prosser eel so compelled o have he cour ac

quickly in arming Gov. Walkers ani-collecive bargaining bill? Beore being

appoined o he cour in 1998, Jusice Prosser served as a Republican legislaor in

he Wisconsin General Assembly or 18 years, rising o he rank o minoriy leader

and assembly speaker.36 Perhaps Jusice Prossers pas lie as a Republican polii-

cian is no ruly in he pas.

In he run-up o he spring 2013 high cour elecion, Jusice Bradley released new

deails abou he inciden ha sugges ha Jusice Prossers acions were par o a

patern o inappropriae behavior. She said ha one year and our monhs beore

he inciden, she me wih cour adminisraors o discuss concerns ha Jusice

Prosser may endanger my physical saey hrough a poenial escalaion in vio-

lence.37 Jusice Bradley claimed ha Jusice Prosser appeared increasingly agiaed

in he monhs leading up o he inciden.38 She said ha Chie Jusice Abrahamson

and hersel sill lock hemselves inside heir oces when working alone because o

concerns or our physical saey due o Jusice Prossers behavior.39

Monhs beore he chokehold inciden, Jusice Prosser admited ha he reerred

o he cours chie jusice as a oal bich and hreaened o desroy her. 40

Jusice Prosser said ha he made hese hreas afer learning ha he chie jusice

was supporing his opponen in he upcoming elecion.41 Jusice Roggensack and

In this June 6, 2011, le photoWisconsin Supreme Court JusticDavid T. Prosser, Jr. and Ann WalBradley consider oral argumenting a hearing on the states budbill at the Wisconsin State CapitMadison. A prosecutor said ThuAug. 25, 2011, that Justice Prosswont ace criminal charges oveallegations he choked Bradley. JBradley accused Prosser o chocher in June as the justices delibated on a legal challenge to GO

Scott Walkers contentious collebargaining law.

AP PHOTO/JOHN HART, POOL, FILE


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Jusice Prosser claimed ha his colleagues someimes goad Jusice Prosser ino

making such hreaening saemens.42

A he ime o he choking alercaion, ensions also ran high over an eh-

ics invesigaion. In 2008 Jusice Gableman was accused o running an ad wih

misleading saemens abou his poliical opponen, liberal Jusice Louis Buler.43

Jusice Gableman was criicized or he racial underones o he ad in quesion.44

(Jusice Buler is he rs and only Arican American jusice on he Wisconsin

high cour.) Te Wisconsin Judicial Commission ound ha Jusice Gableman

engaged in misconduc.45 Jusice Gableman was also accused o violaing eh-

ics rules by acceping ree legal services rom a law rm ha had a case pending

beore he cour in an eor o deend himsel agains he ehics charges regard-

ing he ad.46 Jusice Prosser was brough up on ehics charges or he chokehold

inciden. Because he Wisconsin Supreme Cour is he only body ha can enorce

judicial ehics rules or he jusices and he cour is deadlocked along pary

lines, he jusices aced no sancions or he ehics rules violaions ound by heWisconsin Judicial Commission.47


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Consensus falls apart

Jusice Bradley has said ha he cours hyper-parisanship is a direc resul o

he increasing campaign cash in is elecions.48 In a 2012 panel discussion, Jusice

Bradley spoke o he consequences when poliical paries and special iner-

es groups pu he high cours in he various saes really in he crossre o he

batle has being ough beween hose special ineres groups. She said ha he

jusices someimes eel hey are pawns in a chessboard.49 Te sharp increase

in campaign spending was driven by money rom special ineress ha wan he

cour o rule a cerain way, paricularly in or, or personal-injury, cases.50 Moneyrom rial lawyers and labor unions unded he poliical eors o liberal judges,

who ruled more ofen or plainis and unions. Big business poured money ino

he campaigns o conservaive judges who would rule more ofen or corporae

deendans in or cases.51 As a resul, he cour has broken ino clear liberal and

conservaive acions in recen years.

Jusice Gableman has publicly saed ha he acrimonious climae on he cour

creeps ino our work.52 According o Jusice Gableman, however, he inghing

sems rom poor leadership. Jusice Gableman has harshly criicized Chie Jusice

Abrahamsons leadership and said ha changes o he chie-jusice selecion pro-

cess would give he person seleced o be chie jusice an incenive o conduc

him or hersel in a collegial manner.53 He has said ha he chie jusices dissen-

ing opinions are possibly more damaging o he cour han anyhing else54 and

described recen dissens as atacks challenging he inelligence, capabiliy and

even he good aih o he majoriy.55

A Cener or American Progress analysis o he cours rulings shows ha as

money has poured ino Wisconsin Supreme Cour races, he percenage o unani-

mous cases has declined sharply. A May 2013 CAP repor looked a rulings in orcases by he sae supreme cours ha have seen he mos money in recen years,

and he appendix o his repor applies he same mehodology o he Wisconsin

Supreme Cour. CAP ocused on or cases because, even hough unions assumed


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a larger role in recen high cour elecions, Wisconsins judicial campaigns have

hisorically been dominaed by money rom rial lawyers who oppose limis on

personal-injury lawsuis and by corporae ineress ha suppor limiing liabiliy

or negligence. Te Wisconsin Supreme Cour has become ye anoher ron in

he poliical batle over or reorm and or liabiliy in general, and his poliical

batle has moved ino he chambers o he high cour.56

CAP examined 145 or cases ha he cour decided beween 2002 and 2012.

(see able 1 below) In 2003 he percenage o unanimous opinions peaked a

more han 83 percen, bu by 2007, he year o he rs mulimillion-dollar elec-

ion, he gure had dipped o

40 percen. Te percenage

rebounded some in 2008, only

o all sharply afer ha. Te

percenage o unanimous opin-

ions in or cases reached a lowo 25 percen in 2012. As he

campaign cash poured in over

10 years, he percenage o

unanimous decisions ell rom

83 percen o jus 25 percen.

Jus as he number o unani-

mous decisions has allen, he

percenage o closely divided

rulings in or cases has gener-

ally risen. Te cour had no 4-3

rulings in 2003 or 2004, bu

he number rose unil 2007,

when i reached 33 percen.

Te percenage dipped o 14

percen in 2009, only o rise

again o 44 percen in 2010.

Despie some variabiliy, he

rend o an increase in closelydivided rulings is clear.

Alan Ball, a proessor o hisory a Marquete Universiy in Milwaukee, Wisconsin,

assembled daa on all o he cours rulings, no jus in or cases, rom 2004 o

FIGURE 1

A divided court

0%

20%

40%

60%

80%

100%

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012$0

$1,00

$2,00

$3,00

$4,00

$5,00

$6,00

$7,00

$8,00

Percentage of 4-3 votesUnanimous votesCampaign cash

Sources: National Institute on Money in State Politics, National Overview Map, available at http://www.ollowthemoney.org/

database/nationalview.phtml(last accessed July 2013); Jesse Rutledge, ed., The New Politics o Judicial Elections in the GreatLakes States, 20002008 (Washington: Justice at Stake, 2008), available at http://www.ollowthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pd;James Sample and others, The New Politics o Judicial Elections, 2000-2009: Decade

o Change (Washington: Brennan Center or Justice, National Institute on Money in State Politics, and Justice at Stake, 2010),available at http://www.brennancenter.org/sites/deault/fles/legacy/JAS-NPJE-Decade-ONLINE.pd; Adam Skaggs and oth-ers, The New Politics o Judicial Elections, 200910 (Washington: Brennan Center or Justice, National Institute on Money

in State Politics, Justice at Stake, 2011), available at http://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pd;Brennan Center or Justice, Judicial Public Financing in Wisconsin 2011, Press release,

April 5, 2011, available at http://www.brennancenter.org/analysis/judicial-public-fnancing-wisconsin-%E2%80%94-2011;Brennan Center or Justice, Buying Time: Wisconsin Judicial Elections 2013, available at http://www.brennancenter.org/sites/deault/fles/analysis/Buying_Time/Wisconsin%202013%20Election.pd.
http://www.followthemoney.org/database/nationalview.phtmlhttp://www.followthemoney.org/database/nationalview.phtmlhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.brennancenter.org/sites/default/files/legacy/JAS-NPJE-Decade-ONLINE.pdfhttp://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://www.brennancenter.org/sites/default/files/legacy/JAS-NPJE-Decade-ONLINE.pdfhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.followthemoney.org/database/nationalview.phtmlhttp://www.followthemoney.org/database/nationalview.phtml


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2012, and his daa show a similar drop in he number o unanimous opinions in

2008 and 2009.57 Balls daa, however, show a more gradual decline in unanimous

rulings rom 2004 o 2012, ollowed by an upick in unanimous rulings in 2011

and 2012.58 Tis suggess he decrease in he number o unanimous opinions is

more pronounced in or cases han in oher cases.


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Campaign cash:

The source of division

Special ineress ha wan he jusices o rule a cerain way can give unlimied,

anonymous conribuions o independen spending groups, which in urn spend

money o elec Wisconsin Supreme Cour candidaes. Plainis rial lawyers, as a

rule, suppor candidaes who end o rule or plainis in or cases. 59 Big-business

groups such as Wisconsin Manuacurers & Commerce atack candidaes backed

by rial lawyers and spend money o elec judges who end o rule or deendans

in or cases.60 Te increase in money rom hese ineres groups and he jusices

increasing need o access his money o keep heir jobs are correlaed wih heemergence o clear conservaive and liberal acions on he cour.

Caugh in a poliical batle beween wo acions wih a nancial ineres in he

oucome, he Wisconsin Supreme Cour jusices began o align ino wo ideological

camps in or cases.61 As a consequence, he cour now uncions more like a polii-

cal body han i did jus 10 years ago, as borne ou by he CAP analysis. Members o

he cour are now more like legislaorsreceiving campaign cash rom special iner-

ess ha wan hem o voe a cerain way and making decisions in a parisan ashion.

Corporae ineres groups did no like he cours rulings in or cases when he liberal

jusices had a majoriy on he cour, so hey se ou o change he cour.62 Te corpo-

rae ineress are currenly winning he poliical batle over he cour 63 and have suc-

ceeded in elecing a slim majoriy o jusices who voe o limi liabiliy in or cases.64

Te daa in he accompanying appendix show ha corporae deendans had a

high success rae73 percenin or cases in 2004, bu ha gure dropped

sharply o 20 percen in 2005 afer he conservaive jusices los a brie one-voe

majoriy. In 2008, when Jusice Gableman deeaed Jusice Bulerhe liberal

jusice who auhored he lead-pain decision reviled by Wisconsin Manuacurers& Commerce65he pro-deendan jusices regained a majoriy.66 Fair-cours

advocaes repored ha Wisconsin Manuacurers & Commerce spen $1.6 mil-

lion on ads in he 2008 high cour race, and 80 percen o hose ads were atacks

on Jusice Buler ha ocused on criminal jusice issues.67


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Jusice Gableman recenly criicized he liberal majoriy ha preceded him

or engaging in judicial acivism, and he concluded ha, Nohing has done

more o arnish he image o

our cour han he rulings by

he liberal acivis majoriy

beween 2004 and 2008.68

Hehas gone on record criicizing

several o he liberal majoriys

rulings in or cases. Jusice

Gabelman also said ha he

lawduring he ime he

liberal jusices were he major-

iybecame unpredicable

and ransien as he shifing

winds.69 So Jusice Gableman

and he new conservaivemajoriy presumably se ou

o make he law more predic-

able. Afer Jusice Gableman

ook his sea on he bench,

corporae deendans won an

asonishing 79 percen o he

high cours or cases in 2009.

Big business has spen more

money han rial lawyers or

liberal groups in recen years

o mainain a majoriy o is

avored jusices on he cour. Te Wisconsin Civil Jusice Council, a corporae-

unded group ha advocaes limied or liabiliy, ranked he curren jusices by

wheher is unders agree wih he jusices voes in cerain cases, mosly or

cases.70 Te our conservaive jusices voes lined up wih he preerences o he

councils members in 80 percen or more o he cases.71 Tese jusices ruled con-

sisenly in avor o hospials and insurers and agains injured plainis.72

Jusice Gableman has described he our-jusice majoriy s approach as a

judicial ly conser vaive course ha ocuses on applying he law raher han mold-

ing i o our own personal agendas and desires. He claims he majoriy has

resored predicabiliy and sabiliy in Wisconsin law.

FIGURE 2

More wins for corporate defendants in Wisconsin Supreme Court

tort cases

0%

20%

40%

60%

80%

100%

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012$0

$1,0

$2,0

$3,0

$4,0

$5,0

$6,0

$7,0

$8,0Percent won by defendant

Campaign cash

Sources: National Institute on Money in State Politics, National Overview Map, available at http://www.ollowthemoney.org/database/nationalview.phtml(last accessed July 2013); Jesse Rutledge, ed., The New Politics o Judicial Elections in the GreatLakes States, 20002008 (Washington: Justice at Stake, 2008), available at http://www.ollowthemoney.org/press/Reports/

NPJEGreatLakes2000-2008.FINAL.pd;James Sample and others, The New Politics o Judicial Elections, 2000-2009: Decade oChange (Washington: Brennan Center or Justice, National Institute on Money in State Politics, and Justice at Stake, 2010), avai

at http://www.brennancenter.org/sites/deault/fles/legacy/JAS-NPJE-Decade-ONLINE.pd; Adam Skaggs and others, The NewPolitics o Judicial Elections, 200910 (Washington: Brennan Center or J ustice, National Institute on Money in State Politics, Juat Stake, 2011), available at http://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imag

pd; Brennan Center or Justice, Judicial Public Financing in Wisconsin 2011, Press release, April 5, 2011, available at http://www.brennancenter.org/analysis/judicial-public-fnancing-wisconsin-%E2%80%94-2011; Brennan Center or Justice, BuyingTime: Wisconsin Judicial Elections 2013, available at http://www.brennancenter.org/sites/deault/fles/analysis/Buying_Time/

Wisconsin%202013%20Election.pd;See the appendix.
http://www.followthemoney.org/database/nationalview.phtmlhttp://www.followthemoney.org/database/nationalview.phtmlhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.brennancenter.org/sites/default/files/legacy/JAS-NPJE-Decade-ONLINE.pdfhttp://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/sites/default/files/analysis/Buying_Time/Wisconsin%202013%20Election.pdfhttp://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://newpoliticsreport.org/site/wp-content/uploads/2011/10/JAS-NewPolitics2010-Online-Imaged.pdfhttp://www.brennancenter.org/sites/default/files/legacy/JAS-NPJE-Decade-ONLINE.pdfhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.followthemoney.org/press/Reports/NPJEGreatLakes2000-2008.FINAL.pdfhttp://www.followthemoney.org/database/nationalview.phtmlhttp://www.followthemoney.org/database/nationalview.phtml


15/46


Corporae ineres groups have spen millions on judicial elecions o il he

scales o jusice agains injured plainis and in avor o corporae deendans. A

May 2013 CAP repor iled No Jusice or he Injured, ound paterns similar

o he one above in he six sae supreme cours ha have seen he larges inux o

campaign cash. In hose saes, corporae deendans had a 70 percen success rae

in or cases rom 2002 o 2012, rising o 76 percen in 2011 and 2012.73

In exas,he high cour ruled agains injured plainis in 83 percen o he cases sudied.

Te CAP repor warned:

Beore big business declared war on the right to a jury trial, an individual who

was injured by a deectively designed product or an unsae workplace could look

to state courts or justice. An individual who was maimed by the negligence o a

hospital or a parent whose child was made ill by a nearby industry plant spew-

ing a toxic substance could rely on the courts to hold the wrongdoer accountable.

With unlimited corporate money pouring into judicial races, this principle is less

true with each passing election.74

I he sories o proaniy and physical conronaions among he jusices were

no enough, he numbers compiled by CAP show ha he Wisconsin Supreme

Cour is undeniably broken. I uncions much more like a poliical body han i

did beore he mulimillion-dollar elecions began. Afer poliical pressure rom

boh sides o he or-liabiliy debae, he cour now rules more ofen or corporae

deendans, issues ewer unanimous opinions, and decides more cases along pary

lines. Reormers, as well as he cour isel, have explored several possibiliies o

address he cours dysuncion.


16/46


Fixing whats broken: Keeping

politics out of the courtroom

Wheher he problem is he lack o uniy or he inuence o campaign cash, i is clear

ha somehing mus be done abou he poliicizaion o he cour. Jusice Bradley

believes he schism on he cour is due o pressure resuling rom mulimillion-dollar

campaigns,75 while Jusice Prosser blames personal re-elecion pressures and polii-

cal acions on he bench.76 Eiher way one approaches his problem, he proposed

consiuional amendmen o limi he jusices o a single 16-year erm could help.

Media repors described one o he goals o he proposal as semming he ow omoney ino judicial elecions.77 Tis money ofen pours ino judicial campaigns

rom atorneys and hose who requenly liigae beore he high cour. Once a

judge is on he bench, he or she mus coninue raising money rom he same iner-

esed paries in order o keep being re-eleced.

Te Sae Bar o Wisconsin ask orce claims ha under is proposal, he jusices

would no longer be poliical candidaes required o seek suppor and approval

rom individuals and groups wih ideniable poliical perspecives and economic

ineress.78 Te ask orce noes ha he jusices could no be atacked by allega-

ions ha heir decisions are moivaed by concerns or re-elecion.79 Whas

more, according o he ask orce, is proposal would reduce he requency o

ofen poliically charged and cosly elecions.80

Many sudies have shown a correlaion beween campaign conribuions and

a cour or judges rulings. A 2009 sudy by Joanna Shepherd-Bailey, a proes-

sor a Emory Law School, or example, concluded ha campaign conribuions

inuence sae supreme cour rulings.81 Bu Shepherd ound ewer correlaions

beween campaign conribuions and rulings or judges who are acing reiremen.

Shepherds sudy ound no sysemaic relaionship beween campaign cash andoucomes or judges who are no acing anoher elecion.82 Anoher sudy by

Shepherd examined he eec o poliical pressure on sae supreme cour rulings

in civil and criminal cases and ound ha judges in heir las erm respond less

o poliical orces han do oher judges.83


17/46


Tese ndings sugges ha limiing jusices o one erm could address many o

he problems associaed wih judicial elecions. Even i reiring judges owe heir

poliical careers o campaign donors, hey eel no pressure o rule in avor o hose

campaign donors when hey do no have o ace re-elecion.

Chie Jusice Maureen OConnor o he Ohio Supreme Cour, which has seen asimilar spike in campaign cash, recenly asked voers o consider several opions

or reorming judicial elecions, including a doubling o he jusices erms rom

6 years o 12 years.84 Te chie jusice quoes a ask orce, which concluded ha

increased erm lenghs would promoe judicial independence while ensuring

coninued accounabiliy o he public.85

In a 2011 poll by Jusice a Sake, a nonparisan campaign o keep cours air and

imparial, 88 percen o Wisconsinies surveyed were a leas somewha con-

cerned ha campaign spending and he deerioraing enor o judicial elecions

are arnishing he repuaion o he Wisconsin Supreme Cour.86 I jusices werelimied o a single erm, hey would never again have o worry abou wheher heir

voes in a paricular case will oend ineres groups ha spend money on atack

ads. Te jusices could ocus on he acs and he law in he case beore hem

wihou being concerned abou how heir voes could impac heir abiliy o raise

money or win re-elecion.

Te sae chaper o he U.S. Chamber o Commerce has no aken an ocial posi-

ion on he proposed reorm, bu Kur Bauer, presiden and CEO o Wisconsin

Manuacurers & Commerce, said ha he does no hink money has been a prob-

lem in recen elecions.87 Democracy isn supposed o be easy, said Bauer.88

Te curren orm o democracy or Wisconsin judicial elecions makes i easy

or corporae special ineress such as Wisconsin Manuacurers & Commerce

o inuence he composiion o he sae supreme cour. Since 2000 urnou or

hese races has only once exceeded 25 percen.89 Because voer ineres is no as

high, poliical ads can exer subsanial inuence over voers. Corporae-unded

groups have spen millions o dollars on high cour elecion ads in recen years.

Groups such as Wisconsin Manuacurers & Commerce can accep large conribu-

ions rom heir corporae beneacors and use ha money o elec pro-corporaejusices o he cour. Te corporae communiys eors have been successul. A

recen op-ed noes, Conservaives have now won six o he pas seven conesed

races or Wisconsins highes cour.90


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Under he ask orces proposed amendmen, special ineress would sill have he

opporuniy o recrui and und he campaigns o candidaes ha hey preer. Bu

once on he bench, hose special ineress can never again inuence he judge by

argeing him or her wih atack ads or by an implied hrea o wihhold nancial

suppor in a re-elecion campaign.

I he inuence o campaign donors on siting jusices recedes, would he cour see

some relie o he hyper-parisanship ha Jusice Bradley atribues o expensive

elecions? I a jusice has o run or re-elecion and needs a lo o money o do so,

hen he jusice mus eel some pressure o rule in a way ha pleases poenial cam-

paign donors. Given he cours increasingly clear parisan divide, ha jusice mus

eel some pressure o have a voing record ha aligns wih he preerences o poen-

ial campaign donors. Wihou he pressure o be perceived by donors as clearly on

one eam or anoher, Wisconsinies could see heir high cour once again issuing

more unanimous opinions. Te cour could once again nd consensus.

Alhough he amendmen would allow he curren jusices o seek anoher erm,

he proposed sysem would evenually reduce he personal oll ha poliics akes

on he jusices. Te ask orce says i would reduce he poenial or atack ads

during high cour campaigns.91 One ormer high cour jusice said ha limiing

he use o campaign ads ha disor he jusices records would help resore he

cours repuaion.92

Te ask orce also seems o hink ha is proposal would help he jusices avoid

verbally and physically atacking one anoher. I claims he amendmen would

promoe collegialiy by eliminaing he poenial ha jusices will publicly or

privaely oppose a colleagues re-elecion.93 According o he ask orce, i is his

riskno Jusice Prossers behaviorwhich is he mos powerul orce inerer-

ing wih collegialiy.94

Elecion-year poliics do seem o have complicaed he relaionship among he

jusices. According o Jusice Gableman, hree members o he our-jusice major-

iy ook he unprecedened sep o publicly endorsing Chie Jusice Abrahamsons

opponen in 1999 because o deep discord and a lack o eecive leadership

on he cour.95

He noes ha he elecion ollowed a batle over a proposal o limihe adminisraive auhoriy o he chie jusice.96

Jusice Prosser admis ha he made his hreaening commens o Chie Jusice

Abrahamson while he was in he mids o his own re-elecion batle.97 He had accused


19/46


he chie jusice o aligning wih

his poliical opponen.98 Jusice

Prossers jusicaion implies

ha his exremely inappropri-

ae hreas and proaniy would

never have happened i no orhe pressure he was under dur-

ing his re-elecion campaign.

o he exen ha he ask orce

is giving credence o Jusice

Prossers jusicaions, i may

be enabling his abusive behav-

ior. Jusice Bradley saed, In

oces and on acory oors

hroughou his counry, heperperaors o workplace abuse

and heir enablers ofen ry o

minimize he abusive conduc. Ten hey blame ohers or i.99

Appellae judges are appoined or eleced o make complicaed and conroversial

decisions. Te job requires hem o deliberae hese issues wih colleagues wih

whom hey may disagree. Tey make group decisions. A cour canno uncion

i disagreemens lead a juris o erup ino violen emper anrumsas Jusice

Bradley described Jusice Prossers behavior.100

Jusice Bradley noed ha having a coworker grab he neck o anoher in anger

is no accepable behavior in any work environmen.101 Jusice Prosser seems o

have some issues wih anger and impulse conrol, and he seems prone o blaming

ohers or his violen ouburss. I seems ha hese problems wih Jusice Prossers

behavior, more han poliical pressure, are o blame or he cours lack o collegial-

iy. A proposed consiuional amendmen canno mend a judges roubled psyche.

Justice David Prosser, speaks toporters at the Seven Seas Resta

Tuesday April 5, 2011 in WaukesWis. as he takes on Assistant AttGeneral JoAnne Kloppenburg oWisconsin Supreme Court seat.

AP PHOTO/DARREN HAUCK


20/46


Conclusion

Te Sae Bar o Wisconsin ask orce considered a variey o poenial changes

o he saes high cour races, and i concluded ha a single 16-year erm was he

bes, mos easible alernaive.102 Limiing he jusices o a single erm would

cerainly alleviae he poliical pressure hey eel while on he bench. I may lead

o less hyper-parisanship, as jusices would no longer eel pressure o please he

donors who could poenially und heir re-elecion campaigns.

Te jusices could ocus on inerpreing he law wihou ear o he poliical conse-quences. As in he ederal sysem, where jusices are appoined or lie, judges on

he sae high cour would be largely independen rom poliical concerns once on

he bench. Special ineress would sill spend money o shape he composiion o

he cour, bu hey would have much ewer opporuniies o do so.

Some have raised concerns ha he relaive inrequency o elecions will acu-

ally cause more money o ood each high cour elecion. Mike McCabe, execu-

ive direcor o he Wisconsin Democracy Campaign, warned ha whenever

a sea on he cour opens up, he ineres groups are going o be anxious o

inuence ha elecion, because is he one sho hey ll have a inuencing who

sis in ha sea or 16 years.103

Tese concerns could be valid, bu Wisconsin already has relaively long judi-

cial erms10 years. Daa on direc campaign conribuions rom he Naional

Insiue on Money in Sae Poliics sugges ha erm lengh could have some

correlaion wih how much money candidaes raise in each elecion.104 Saes wih

10-year erms saw more campaign conribuions in several recen elecion cycles,

hough hese gures do no include independen spending.105

Parisan races or 10-year erms saw even more money han hose or 12-year

erms, alhough i he gures included independen spending, hen he only sae

wih a 12-year erm, Wes Virginia, would have led he money race in he period

rom 2004 o 2005.106 Elecions or six-year parisan erms were more expensive


21/46


in earlier elecions, bu hose

sae supreme coursin

Alabama, exas, and Ohio

are now rmly in he hands o

Republican jusices afer years

o mulimillion-dollar elec-ions.107 Moreover, some o he

saes wih six-year ermsor

boh parisan and nonparisan

oceshave seen millions o

dollars in independen spend-

ing in recen elecions,108 which

could explain he slower growh

in direc campaign conribu-

ions in hose saes. Many

acors deermine how muchmoney is spen in judicial races,

and he inuence o erm lengh

on he amoun o money raised

needs urher sudy.

In a leter o he edior, one

Wisconsinie warned ha

elecions could produce a

jusice who is a dud or a

erm o 16 years.109 Bu as he

2012 gubernaorial elecion

showed, Wisconsin voers

are no araid o call or a

recall elecion o heir eleced

represenaives when given

an opporuniy o do so.110

Moreover, a dud, no mater

he lengh o ime, is always a

risk when elecing judges.

FIGURE 3

Average campaign cash per election in nonpartisan, contested rac

$0

$500,000

$1,000,000

$1,500,000

$2,000,000

8-year term

6-year term

10-year term

2000-01 2002-03 2004-05 2006-07 2008-09 2010-11

FIGURE 4

Average campaign cash per election in partisan, contested races

$0

$1,000,000

$2,000,000

$3,000,000

$4,000,000

$5,000,000

$6,000,000

2000-01 2002-03 2004-05 2006-07 2008-09 2010

8-year term

6-year term

10-year term

12-year term

Sources: National Institute on Money in State Politics, National Overview Map, available at http://www.ollowthemoney.org/

database/nationalview.phtml (last accessed July 2013); American Judicature Society, Methods o Judicial Selection, available atwww.judicialselection.us/judicial_selection/methods/selection_o_judges.cm?state (last accessed July 2013).
http://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?statehttp://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?state


22/46


On he oher hand, in meri-selecion sysems, a panel composes a lis o poenial

candidaes based solely on heir qualicaions, and he governor chooses a nomi-

nee rom he lis.111 Te jusices ofen are required o ace he elecorae in reen-

ion elecions, in which he voers decide wheher o keep hem on he bench.112

Unlike conesed elecions, hese sysems minimize poliicizaion and he inu-

ence o campaign cash.113

Te Sae Bar o Wisconsin ask orce also discussed poliical opposiion o meri-

selecion plans. Some Republican legislaors opposed a meri-selecion proposal

inroduced in 2011.114 Jusice Gableman warned Wisconsinies ha some reorm-

ers would srip us o our consiuional righ o elec our judges. He warned,

Tey believe ha hey know beter han we do.115

Te ask orce also noed he signican diculy o creaing a consiuional

ramework ha does no avor, or seem o avor, one pary over he oher.116 Te

nal proposal was, in he ask orces words, poliically neural.117 Jusice Gablemanimplied ha a meri-selecion commission, which is made up o uneleced, inde-

penden expers, is acually a small group o poliicians. Tese criicisms o meri

selecion are largely unounded. Meri-selecion sysems can be srucured o ensure

nonparisanship and ransparency.118 And concerns ha meri selecion inherenly

avors he selecion o liberal judges are largely unsubsaniaed.119 Te ask orce

noes ha some will oppose any changes o he curren sysem.120

Wisconsin Democracy Campaign Execuive Direcor McCabe also argues ha he

amendmen proposal ails o deal wih he roo causes o he problem, and he

recommends broader campaign nance reorm measures.121 Te ask orce noed

such suggesions bu said, Changes should be as limied as possible o accomplish

he desired change Precise and limied exual change promoes clariy and

avoids uninended consequences.122

Moreover, he proposed change would require a consiuional amendmen, which

enails a majoriy voe in wo consecuive legislaive sessions and approval by a

majoriy o voers.123 Te ask orce concluded ha is proposal was mos likely o

earn he broad, biparisan and public suppor necessary, given he deeply polar-

ized poliical climae in he sae.124

Tis polarizaion also makes oher judicialelecion reorms unlikely.

In 2007 he enire Wisconsin Supreme Cour asked he legislaure o provide pub-

lic nancing, given he risk ha he public may inaccuraely perceive a jusice as


23/46


beholden o individuals or groups ha conribue o his or her campaign.125 Te

legislaure passed a bill o und he program in 2009. Alhough boh candidaes

running or he high cour bench in 2011 paricipaed in he program, indepen-

den spending overwhelmed he amoun raised hrough public nancing, and he

Republican legislaure voed o deund he program.126 Te same hing is currenly

happening in Norh Carolina,127

even hough a recen sudy ound ha candidaesparicipaing in he saes public nancing program were less responsive o heir

campaign donors han candidaes who ran beore he creaion o he program.128

In is repor, he ask orce noed ha some reorms are simply consiuionally

prohibied.129 Te ask orce may be reerring o a 2011 U.S. Supreme Cour case

ha ruled unconsiuional a sysem o maching unds or publicly nanced

candidaes.130 In ha case, Arizona oered candidaes or cerain oces public

unds or campaigning i hey agreed o spending and conribuion limis.131 Te

Arizona sysem oered addiional maching unds or publicly nanced candidaes

whenever heir opponens spen more han he public nancing subsidy, bu heU.S. Supreme Cour described hese maching unds as an unconsiuional pen-

aly on he poliical opponens speech.132

Tis prohibiion on radiional maching unds makes i harder or publicly

nanced candidaes o compee, bu some jurisdicions are experimening wih

oher ways o provide publicly nanced candidaes wih he exibiliy hey need

o remain compeiive. In New York, or example, he sae legislaure is consid-

ering a small donor-maching sysem in which each dollar o donaions under

$175 would be mached wih $6 rom he public nancing sysem.133 Tis ype o

sysem oers exibiliy wihou he consiuional concerns raised by radiional

maching unds.134

Chie Jusice Abrahamson, he arge o mos o Jusice Prossers ouburss unil

Jusice Bradley was allegedly assauled, argues ha limied, 16-year erms would

no keep money ou o high cour elecions.135 Insead, she recommends ougher

rules on when he jusices mus recuse hemselves rom cases involving campaign

conribuors.136 Te our conservaive members o he cour, however, moved

in he opposie direcion in 2010 and adoped he lax recusal sandard urged by

Wisconsin Manuacurers & Commerce.137

An Augus 2012 CAP repor noed:

Te court votedalong ideological linesto weaken its recusal rule and adopt

the standard suggested by the Wisconsin Realtors Association and Wisconsins

Manuacturers and Commerce, a group which donated nearly a million dollars


24/46


to support Prossers reelection in 2011. Te new rule states that campaign dona-

tions can never be the sole basis or recusal. In dissent, Justice Bradley expressed

alarm that judges campaigns can now ask parties beore the court or campaign

contributions. Judges must be perceived as beyond price, Bradley stated. She

criticized the majority or adopting word-or-word the script o special interests

that may want to sway the results o uture judicial campaigns. Te court seemsintent on making it easier or big money to infuence the judiciary, at the expense

o litigants without vast resources.138

Chie Jusice Abrahamson argues ha he legislaure should override he cours

decision and implemen a rule requiring he jusices o recuse hemselves in cases

involving campaign donors.139 Some sae legislaures have responded o he

growing conics o ineres in judicial campaigns by passing sricer recusal rules.

Much o he money spen in Wisconsin high cour races, however, now comes

rom independen groups,140 and his could pose a challenge or rules requiring

recusal or campaign donaions.

Jusice Gableman has claimed ha a mandaory recusal rule would perpeu-

ae he division and hosiliy ha has plagued he cour.141 Similar o U.S.

Supreme Cour Chie Jusice John Robers dissen in a 2009 U.S. Supreme Cour

case involving campaign cash and judicial recusal,142 Jusice Gableman seems

o hink ha rules prevening judges rom deciding cases involving campaign

conribuors will send a message o he public ha judges canno be rused o ac

ehically.143 He argues ha a ougher recusal rule will do nohing o improve he

relaionships on he cour.144 Insead, Jusice Gablemans advice o his colleagues

is o sop airing in public every disagreemen concerning inernal maters.145

Te ac ha somehing mus be done in Wisconsin could no be clearer. Te

physical violence among he jusices urned he cour ino a laughingsock. Whas

more, he cour is ailing o police isel on ehics issues, and i has adoped he

recusal rule urged by a big-business group ha has spen millions o inuence he

composiion o he cour. Neiher he cour nor he legislaure has addressed he

roo causes o he deep division on he cour. How does Wisconsin depoliicize is

high cour? Te ask orces proposal is a good way o sar ha conversaion.


25/46


About the author

Billy Corriher is he Associae Direcor o Research or Legal Progress a he

Cener or American Progress, where his work ocuses on he inuence o polii-

cal campaign cash on sae cours. Corriher joined he Cener afer serving as a

weekly blogger or he Harvard Law & Policy Review blog Noice and Commen,wih a ocus on ederal appellae cour cases and oher legal/policy maters. He

has also writen op-eds and blog poss or he American Consiuion Sociey and

he Bill o Righs Deense Commitee. Corriher received his bachelors degree in

poliical science rom he Universiy o Norh Carolina a Chapel Hill. He received

a law degree and a masers degree in business rom Georgia Sae Universiy,

graduaing wih honors in 2009. He is a member o he Sae Bar o Georgia.

Acknowledgements

Te auhor would like o hank his colleagues Andrew Bloky and Carl Chancellor

or heir helpul commens and suggesions, as well as he enire Ar and Ediorial

eams or heir invaluable assisance. Depak Borhara assised wih he compilaion

o he daa in he graphics.


26/46


Endnotes

1 A recent report ound that, Campaign undraisingmore than doubled, rom $83.3 million in 19901999 to$206.9 million in 20002009. James Sample and others,The New Politics o Judicial Elections, 2000-2009:Decade o Change (Washington: Brennan Center orJustice, National Institute on Money in State Politics,

and Justice at Stake, 2010), available at http://www.brennancenter.org/sites/deault/les/legacy/JAS-NPJE-Decade-ONLINE.pd.

2 In The Federalist #78, The Judiciary Department,Alexander Hamilton said, It is not to be inerred that the representatives o the people, whenever a mo-mentary inclination happens to lay hold o a majorityo their constituents, incompatible with the provisionsin the existing Constitution, would be justiable ina violation o these provisions. Alexander Hamilton,The Federalist No. 78: The Judiciary Department,Independent Journal, June 14, 1788, available at http://www.constitution.org/ed/edera78.htm.

3 National Institute on Money in State Politics,Wisconsin 2007, available at http://www.ollowthe-money.org/database/StateGlance/state_candidates.phtml?=J&y=2007&s=WI (last accessed July 2013).

4 National Institute on Money in State Politics,Wisconsin 2008, available at http://www.ollowthe-money.org/database/StateGlance/state_candi-dates.phtml?=J&y=2008&s=WI (last accessed July2013); National Institute on Money in State Politics,Wisconsin 2009, available at http://www.ollowthe-money.org/database/StateGlance/state_candidates.phtml?=J&y=2009&s=WI (last accessed July 2013).

5 Sample and others, The New Politics o Judicial Elec-tions, 2000-2009: Decade o Change, p. 21.

6 Jim Pugh, WMC: Big Stakes or Supreme Court Elec-tion, Wisconsin Manuacturers & Commerce, January7, 2013, available at http://www.wmc.org/uncatego-rized/wmc-taking-on-personal-injury-lawyers/; WMC-MEDIA, Wisconsin Supreme Court Unbound: ProessorRick Esenberg, YouTube, February 9, 2008, available at

http://www.youtube.com/watch?v=w06ghIy6_0Q.

7 Sample and others, The New Politics o JudicialElections, 2000-2009: Decade o Change. Fair-courtsadvocates reported that Wisconsin Manuacturers &Commerce spent $1.6 million on ads in the 2008 highcourt race, and 80 percent o the ads were attacks onJustice Butler, ocusing on criminal-justice issues. Ibid.,p. 32.

8 Judicial Public Financing in Wisconsin 2011, BrennanCenter or Justice, April 5, 2011, available at http://www.brennancenter.org/analysis/judicial-public-nancing-wisconsin-%E2%80%94-2011.

9 Ibid.

10 Lisa Graves, Group called Citizens or Strong AmericaOperates out o a UPS Mail Drop but Runs Expensive Ads

in Supreme Court Race?, PR Watch, April 2, 2011, avail-able at http://www.prwatch.org/news/2011/04/10534/group-called-citizens-strong-america-operates-out-ups-mail-drop-runs-expensive-ad.

11 Associated Press, Tea Party, Labor Spending Big InWisconsin High Court Race, The Hungton Post,April 3, 2011, available at http://www.hungtonpost.com/2011/04/03/tea-party-labor-spend-high-court_n_844165.html.

12 Greater Wisconsin Committee says Supreme CourtJustice David Prosser mishandled allegation o sexabuse by priest, Journal Sentinel PolitiFact Wisconsin,March 24, 2011, available at http://www.politiact.com/wisconsin/statements/2011/mar/29/greater-wisconsin-political-und/greater-wisconsin-committee-says-

supreme-court-jus/.

13 Monica Davey, Wisconsin judge Said to Have AttackedColleague, The New York Times, June 25, 2011, availableat http://www.nytimes.com/2011/06/26/us/26judge.html?_r=0.

14 Patrick Marley, Supreme Court tensions boil over,Milwaukee Journal Sentinel, March 19, 2011, avail-able at http://www.jsonline.com/news/statepoli-tics/118310479.html.

15 Justice at Stake, Condence in Wisconsin SupremeCourt Plunges, Press release, July 21, 2011, availableat http://www.justiceatstake.org/newsroom/press_re-leases.cm/new_poll_condence_in_wisconsin_su-preme_court_plunges?show=news&newsID=11188.

16 State Bar o Wisconsin, Judicial Task Force Preliminary

Report (2013), available at http://host.madison.com/judicial-task-orce-preliminary-report/pd_82938438-47b-500-8a8a-83e808ebba4.html.

17 Ibid.

18 Ibid.

19 Ibid.

20 American Judicature Society, Methods o JudicialSelection, available at http://www.judicialselection.us/judicial_selection/methods/selection_o_judges.cm?state (last accessed July 2013).

21 Ibid.

22 Amanda Terkel, Wisconsin Governor Scott Walker FacesBacklash For Threatening Public Workers With National

Guard, The Hungton Post, February 16, 2011, avail-able at http://www.hungtonpost.com/2011/02/16/wisconsin-governor-scott-walker-backlash-public-workers_n_823901.html.

23 State ex rel. Ozanne v. Fitzgerald, 798 N.W.2d 436 (Wis.2011).

24 Ibid.

25 Dane County Sheris Oce, Dane County SherisOce Deputy Report or Incident 110176237, August23, 2011, available at http://wispolitics.com/1006/large/110826SCincidentFULL.pd.

26 Ibid.; State ex rel. Ozanne v. Fitzgerald, 798 N.W.2d 436,451-58 (Wis. 2011) (Abrahamson, C.J., dissenting).

27 Dane County Sheris Oce, Dane County Sheris

Oce Deputy Report or I ncident 110176237.

28 Ibid.

29 Letter rom Wisconsin Supreme Court Justice AnnWalsh Bradley to James C. Alexander and oth-ers, February 13, 2013, available at http://www.wicourts.gov/sc/opinion/DisplayDocument.pd?content=pd&seqNo=92933.
http://www.brennancenter.org/sites/default/files/legacy/JAS-NPJE-Decade-ONLINE.pdfhttp://www.brennancenter.org/sites/default/files/legacy/JAS-NPJE-Decade-ONLINE.pdfhttp://www.brennancenter.org/sites/default/files/legacy/JAS-NPJE-Decade-ONLINE.pdfhttp://www.constitution.org/fed/federa78.htmhttp://www.constitution.org/fed/federa78.htmhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2007&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2007&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2007&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2008&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2008&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2008&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2009&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2009&s=WIhttp://www.followthemoney.org/database/StateGlance/state_candidates.phtml?f=J&y=2009&s=WIhttp://www.wmc.org/uncategorized/wmc-taking-on-personal-injury-lawyers/http://www.wmc.org/uncategorized/wmc-taking-on-personal-injury-lawyers/http://www.youtube.com/watch?v=w06ghIy6_0Qhttp://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://www.brennancenter.org/analysis/judicial-public-financing-wisconsin-%E2%80%94-2011http://www.prwatch.org/news/2011/04/10534/group-called-citizens-strong-america-operates-out-ups-mail-drop-runs-expensive-adhttp://www.prwatch.org/news/2011/04/10534/group-called-citizens-strong-america-operates-out-ups-mail-drop-runs-expensive-adhttp://www.prwatch.org/news/2011/04/10534/group-called-citizens-strong-america-operates-out-ups-mail-drop-runs-expensive-adhttp://www.huffingtonpost.com/2011/04/03/tea-party-labor-spend-high-court_n_844165.htmlhttp://www.huffingtonpost.com/2011/04/03/tea-party-labor-spend-high-court_n_844165.htmlhttp://www.huffingtonpost.com/2011/04/03/tea-party-labor-spend-high-court_n_844165.htmlhttp://www.politifact.com/wisconsin/statements/2011/mar/29/greater-wisconsin-political-fund/greater-wisconsin-committee-says-supreme-court-jus/http://www.politifact.com/wisconsin/statements/2011/mar/29/greater-wisconsin-political-fund/greater-wisconsin-committee-says-supreme-court-jus/http://www.politifact.com/wisconsin/statements/2011/mar/29/greater-wisconsin-political-fund/greater-wisconsin-committee-says-supreme-court-jus/http://www.politifact.com/wisconsin/statements/2011/mar/29/greater-wisconsin-political-fund/greater-wisconsin-committee-says-supreme-court-jus/http://www.nytimes.com/2011/06/26/us/26judge.html?_r=0http://www.nytimes.com/2011/06/26/us/26judge.html?_r=0http://www.jsonline.com/news/statepolitics/118310479.htmlhttp://www.jsonline.com/news/statepolitics/118310479.htmlhttp://www.justiceatstake.org/newsroom/press_releases.cfm/new_poll_confidence_in_wisconsin_supreme_court_plunges?show=news&newsID=11188http://www.justiceatstake.org/newsroom/press_releases.cfm/new_poll_confidence_in_wisconsin_supreme_court_plunges?show=news&newsID=11188http://www.justiceatstake.org/newsroom/press_releases.cfm/new_poll_confidence_in_wisconsin_supreme_court_plunges?show=news&newsID=11188http://host.madison.com/judicial-task-force-preliminary-report/pdf_82938438-47fb-50f0-8a8a-83fe808ebba4.htmlhttp://host.madison.com/judicial-task-force-preliminary-report/pdf_82938438-47fb-50f0-8a8a-83fe808ebba4.htmlhttp://host.madison.com/judicial-task-force-preliminary-report/pdf_82938438-47fb-50f0-8a8a-83fe808ebba4.htmlhttp://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?statehttp://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?statehttp://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?statehttp://www.huffingtonpost.com/2011/02/16/wisconsin-governor-scott-walker-backlash-public-workers_n_823901.htmlhttp://www.huffingtonpost.com/2011/02/16/wisconsin-governor-scott-walker-backlash-public-workers_n_823901.htmlhttp://www.huffingtonpost.com/2011/02/16/wisconsin-governor-scott-walker-backlash-public-workers_n_823901.htmlhttp://wispolitics.com/1006/large/110826SCincidentFULL.pdfhttp://wispolitics.com/1006/large/110826SCincidentFULL.pdfhttp://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=92933http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=92933http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=92933http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=92933http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=92933http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=92933http://wispolitics.com/1006/large/110826SCincidentFULL.pdfhttp://wispolitics.com/1006/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27/46


30 Dane County Sheris Oce, Dane County SherisOce Deputy Report or Incident 110176237, p. 41.

31 Ibid., pp. 3942.

32 Ibid., p. 63.

33 Ibid., p. 53.

34 Marley, Supreme Court tensions boil over.

35 Ibid.

36 Wisconsin Court System, Justice David T. Prosser Jr.,available at http://www.wicourts.gov/courts/supreme/

justices/prosser.htm (last accessed July 2013).

37 Letter rom Justice Bradley to Alexander and others, p. 3.

38 Ibid.

39 Ibid., p. 5.

40 Marley, Supreme Court tensions boil over.

41 Ibid.

42 Ibid.; Attachments to Dane County Sheris Oce,Dane County Sheris Oce Deputy Report or Inci-dent 110176237, p. 31.

43 Ian Millhiser, Letter: Conservative WI Justice Un-ethically Accepted Free Legal Services From LawyersDeending His Unethical Campaign Ad, ThinkProgress,December 19, 2011, available at http://thinkprogress.org/justice/2011/12/19/391704/letter-conservative-wi-

justice-unethically-accepted-ree-legal-services-rom-lawyers-deending-his-unethical-campaign-ad/.

44 Bruce Murphy, Will the Race Card Work Here?, Mur-phys Law, March 18, 2008, available at http://www.mil-waukeemag.com/article/242011-WilltheRaceCardWork-Here; Mike Plaisted, Gableman Plays the R ace Card,Plaisted Writes, March 15, 2008, available at http://plaistedwrites.blogspot.com/2008/03/gableman-plays-race-card.html.

45 Supreme Court o the State o Wisconsin, WisconsinJudicial Commission v. Gableman, available at http://www.wispolitics.com/1006/081007_Gableman_com-

plaint.pd(last accessed July 2013).

46 Patrick Marley, Justice Gableman not charged legalees in ethics case,Milwaukee Journal Sentinel, Decem-ber 15, 2011, available at http://www.jsonline.com/news/statepolitics/gableman-not-charged-legal-ees-pc35do-135711223.html.

47 Ian Millhiser, Conservative Wisconsin Justices Im-munize Fellow Justice From Choking Allegations,

ThinkProgress, August 13, 2012, available at http://thinkprogress.org/justice/2012/08/13/680211/con-servative-wisconsin-justices-immunize-ellow-justice-rom-choking-allegations/.

48 Justice Ann Walsh Bradley, The View rom the Bench:Judicial Campaigns and Public Condence in the Courts,Remarks at the American Constitution Society 2012National Convention, June 16, 2012, available at http://

www.acslaw.org/news/video/the-view-rom-the-bench-judicial-campaigns-and-public-condence-in-the-courts.

49 Ibid.

50 Tim Jones, Special-interest lobbies pour cast intojudicial elections, Chicago Tribune, July 28, 2008, avail-able at http://articles.chicagotribune.com/2008-07-28/news/0807280154_1_campaign-cash-wisconsin-supreme-court-judges.

51 Ibid.

52 Justice Michael Gableman, Disorder in the Court, Wis-consin Interest21 (1) (2012): 4, available at http://www.wpri.org/WIInterest/Vol21No1/Gableman21.1.html. Thisessay was adapted rom remarks rom a November2011 speech by Justice Gableman.

53 Ibid.

54 Ibid., p. 4.

55 Ibid.

56 Billy Corriher, No Justice or the Injured (Washington:Center or American Progress, 2013), pp. 2427, avail-able at http://www.americanprogress.org/wp-content/uploads/2013/05/NoJusticeorInjured.pd.

57 Balls data on unanimous court rulings show a steadydecline in unanimous opinions rom the 2007-08 termto the 2010-11 term, then a slight uptick in recentyears: 54 percent in the 2004-05 term; 53 percent inthe 2005-06 term; 39 percent in the 2006-07 term; 63percent in the 2007-08 term; 57 percent in the 2008-09term; 43 percent in the 2009-10 term; 38 percent in the2010-11 term; and 48 percent in the 2011-12 term. AlanBall, SCOWstats, available at www.scowstats.com(lastaccessed July 2013).

58 Ibid.

59 Jones, Special-interest lobbies pour cast into judicialelections.

60 Pugh, WMC: Big Stakes or Supreme Court Election.

61 Corriher, No Justice or the Injured.

62 Ibid., p. 2427.

63 Ibid.

64 Ibid.

65 Pugh, WMC: Big Stakes or Supreme Court Election.

66 Patrick Marley and Stacy Forster, Challenger beatsButler in high court race; 1st such ouster since 67,Milwaukee Journal Sentinel, April 2, 2008, available at

http://www.jsonline.com/news/wisconsin/29406414.html.

67 Sample and others, The New Politics o Judicial Elec-tions, 2000-2009: Decade o Change, p. 32.

68 Gableman, Disorder in the Court.

69 Ibid.

70 Wisconsin Civil Justice Council, Inc., 2013 Guide tothe Wisconsin Supreme Court and Judicial Evaluation(2013), available at http://www.wisciviljusticecouncil.org/wwcms/wp-content/uploads/2013/01/WCJC-2013-Guide-to-the-Wisconsin-Supreme-Court-and-Judicial-Evaluation.pd.

71 One justice scored 60 percent, and the most liberaljusticesChie Justice Abrahamson and Justice Brad-

leyscored much lower. Ibid.

72 Ibid.

73 Corriher, No Justice or the Injured.

74 Ibid., p. 13.

75 Justice Bradley, The View rom the Bench: JudicialCampaigns and Public Condence in the Courts.
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28/46


76 Davey, Wisconsin Judge Said to Have Attacked Col-league.

77 Associated Press, Wis. could be only state to have1-term justices, Sheboygan Press, July 8, 2013,available at http://www.sheboyganpress.com/view-art/20130708/SHE0101/307080360/Wis-could-only-state-1-term-justices.

78 State Bar o Wisconsin, Judicial Task Force PreliminaryReport.

79 Ibid.

80 Ibid.

81 Joanna M. Shepherd, Money, Politics, and ImpartialJustice, Duke Law Journal58 (623) (2009): 672.

82 Ibid., pp. 672674.

83 Joanna Shepherd, The Infuence o Retention Politicson Judges Voting,Journal of Legal Studies 38 (1) (2009):190.

84 Chie Justice Maureen OConnor, A Proposal orStrengthening Judicial Elections (Columbus, Ohio:Supreme Court o Ohio, 2013), available at http://ohio-courts2013.org/wp-content/resources/plan.pd.

85 Ibid.

86 Justice at Stake, Condence in Wisconsin SupremeCourt Plunges.

87 Steven Verburg, State would be rst in nation toimpose one long term or top court justices,WisconsinState Journal, July 8, 2013, available at http://host.madi-son.com/news/local/govt-and-politics/state-would-be-rst-in-nation-to-impose-one-long/article_055166e5-1d6a-5961-a7a7-480424437d.html#ixzz2ZPZDdruX.

88 Ibid.

89 Craig Gilbert, A conservative victory run in SupremeCourt races in Wisconsin, The Wisconsin Voter, April3, 2013, available at http://www.jsonline.com/blogs/news/201358491.html.

90 Ibid.


92 Associated Press, Panel suggests term limits or stateSupreme Court, Sheboygan Press, June 29, 2013,available at http://www.sheboyganpress.com/view-art/20130629/SHE0101/130629015/.


94 Ibid.

95 Justice Gableman, Disorder in the Court, p. 3.

96 Ibid.

97 Justice Bradley and Justice Patrick Crooks told police

that Justice Prosser made these statements. DaneCounty Sheris Oce, Dane County Sheris OceDeputy Report or I ncident 110176237, pp. 21, 59.Justice Prosser acknowledged threatening the chie

justice in this manner.

98 Davey, Wisconsin Judge Said to Have Attacked Col-league.

99 Letter rom Justice Bradley to Alexander and others, p. 4.

100 Ibid., p. 2.

101 Ibid., pp. 45.


103 Andrew Beckett, Longer Supreme Court terms raiseconcerns, Wisconsin Radio Network, July 9, 2013, avail-able at http://www.wrn.com/2013/07/longer-supreme-

court-terms-raise-concerns/.

104 National Institute on Money in State Politics, NationalOverview Map, available at http://www.ollowthe-money.org/database/nationalview.phtml(last accessedJuly 2013).

105 Ibid.; American Judicature Society, Methods o JudicialSelection.

106 In a 2004 race or a seat on the West Virginia SupremeCourt, a coal-company executive whose company h ada verdict pending beore the court spent $3 million tohelp elect a justice. Caperton v. Massey Coal, 556 U.S.868 (2009).

107 Billy Corriher, Partisan Judicial Elections and theDistorting Infuence o Campaign Cash (Washington:Center or American Progress, 2012), p. 2, available at

http://www.americanprogress.org/wp-content/up-loads/2012/10/NonpartisanElections-3.pd.

108 In the 2012 election or the Ohio Supreme Court, orexample, independent spending played a key role.Billy Corriher, The Million Dollar Judges o 2012(Washington: Center or American Progress, 2013),available at http://www.americanprogress.org/wp-content/uploads/2013/01/Million-Dollar-Judges-31.pd. The 2006 race or the Washington Supreme Courtsaw independent spending worth millions o dollars,more than the candidates raised. National Institute onMoney in State Politics, Washington 2006: Indepen-dent Spending, available at http://www.ollowthe-money.org/database/StateGlance/state_candidates.phtml?=J&y=2006&s=WA (last accessed July 2013).

109 M

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