This week’s post highlights the three general ways of selecting justices and judges at the state level, and highlighted various issues with each method. The readings on this topic tend to outline one central theme that caught my attention: as judicial selection becomes more akin to the process of selecting legislators, as in a partisan election, judicial impartiality is hindered. However, it is my position that no matter what way they are selected, judges will always be political actors who never will be able to remain truly impartial in American politics.

The readings highlight three basic ways of how a state selects its judges. These methods are appointments, elections, and the Missouri Plan. My prior point is that an influx of special interest money is potentially damaging to judicial independence and impartiality. This suggests that the more a state’s judicial selection process mirrors the elections of legislative officials, the more likely partisan groups and affiliations will be able to influence the elections of judges by spending ridiculous amounts of money. However, this trend isn’t much different than other areas of politics involving elections. Since the Citizens United decision, all areas of political elections have seen an increase in special interest spending.  The idea that this increase will reduce impartiality among state judges is, in my opinion, just empty rhetoric; while I obviously agree that more money spent on judicial elections will eventually make them similar to legislative elections, this point is irrelevant to me because I have maintained throughout this blog that I do not believe judges are impartial anyways. My blog posts have centered on how I believe judges should not be mechanical instruments blindly applying the law, but rather be agents to uphold the law as well as search for justice and the truth in crafting their opinions. Only by applying extra-legal principles such as personal beliefs, scientific data, and ideological principles can a judge craft a ruling unique and original to the judge’s true beliefs on how an outcome of a case should be. As I stated in my first reflection of judicial decision making, there is no turbo-tax equivalent of judging. If people really wanted a judge mindlessly applying the law to random factual scenarios, we could get away with judicial selection completely and replace it with appointing computer programs to decide adjudications.

With my feelings on the judiciary as a backdrop for my decision, I maintain that having partisan or non-partisan elections make no difference. In Wisconsin, we have seen a trend to politicize our judicial elections. The Justice Prosser re-election centered on his feelings towards Act 10, which as we all know was an ideological viewpoint. Justice Prosser could’ve been a lifelong liberal and still his views on Act 10 would have made him the envy of conservative special interests. To buck the trend of being labeled partisan, Justice Roggensack recently won a Supreme Court election with her main argument being the impartiality of her decisions. To the Wisconsin judiciary, being impartial is becoming the normal re-election cry of incumbent judges and justices. To this end, having a partisan election is no different that a nonpartisan election. If a special interest group cannot label a judge “Republican” or “Democrat,” it will find another label that will alert voters of each party on how to vote for the correct candidate.

Similarly, the appointment process is a not a method of insulating judges from political pressures. The electorate, while not voting directly on the judges, will vote for the governor that will appoint the judges. Furthermore, I refuse to by in to the argument that, absent some sort of retention election, governors will select judicial candidates that do not have the same ideological viewpoints. Why would Governor Walker appoint liberal judges who would attempt to limit his agenda by blocking his reforms in the judiciary? While it is constitutional, conflict between different branches of government never results in advancing a bipartisan agenda; the present trend is to destroy the other side’s viewpoints instead of working towards a compromise everybody can get behind.

In short, I support the Missouri Plan of selecting judges. Under the Plan, a non-partisan commission reviews candidates for a judicial vacancy. The commission then sends to the governor a list of candidates considered best qualified. The governor then has a certain time limit to select a candidate from the list. If the governor does not make a selection within that time frame, the commission makes the selection.

Without even going into the concept of a retention election, it is easy to embrace the nomination process of the Missouri Plan. Political parties will still select a list of judges that support their ideologies. From that point, the judicial selection process becomes more akin to the passage of a bill than either an appointment or an election. The commission is bipartisan in nature, and the extremists will be eliminated from consideration. The judges selected by the commission will be located more to the center of the ideological spectrum, and will be more representative of the population as a whole. Then the candidate will go through both an appointment and election process.

I support the Missouri Plan even though I am aware that some reviews of the plan cast into doubt its ability to dissuade special interest groups from affecting judicial elections. However, the initial bipartisan nomination process the Missouri Plan adopts will be, in general, selecting judges more independent than the other options.  The Missouri Plan, in my opinion, seems more impartial than popular influence (elections) or political parties in power (appointments) controlling all of the nomination process. Of course, the problems of partisan judicial elections permeate from our archaic two-party political system as a whole, but that is another story for a different reflection.