'Not as political as what we're seeing right now': Former justice wants to overhaul Wisconsin Supreme Court elections

 

MILWAUKEE (CBS 58) -- One week before voters determine whether progressives or conservatives control the Wisconsin Supreme Court, a former justice suggested Wisconsin should move away from having voters elect new members of the high court.

Janine Geske was appointed to the state Supreme Court in 1993 by former Republican Gov. Tommy Thompson. She was then elected to a full term in 1994 before resigning in 1998 to start her own dispute resolution practice.

Geske, who now manages the center for restorative justice at the Marquette University Law School, said Monday in an interview this spring's campaign has shaken her confidence in the idea Wisconsin Supreme Court elections can truly remain nonpartisan.

Instead, she called for state Supreme Court justice to become an appointed position, with voters later deciding whether to keep those justices on the court.

"I've always been a big supporter of elections because I think it's important for the candidates to be out and meeting people and going to small towns all over the state and listening to people," Geske said. "But I think that's been outweighed by the money and the ads and the political pressure in this campaign."

Wisconsin is one of 14 states to elect its high court justices in nonpartisan elections, according to Ballotpedia. In those contests, candidates do not affiliate with a party. In Michigan, the parties hold nominating conventions, but the general election candidates do not have a party label.

Eight other states have partisan Supreme Court elections where the candidates do align with a party.

Geske said the current contest between Milwaukee Circuit Court Judge Janet Protasiewicz, who's backed by liberals, and former state Supreme Court justice and private attorney Dan Kelly, who's supported by conservatives, looks indistinguishable from Wisconsin's partisan contests.

Democrats have dumped millions into the race for Protasiewicz. While Kelly isn't taking campaign money directly from the Republican Party, he previously served as counsel to the Wisconsin GOP, and advised the state party during a time in which it submitted a false slate of electors for former President Donald Trump in December 2020.

An analysis of TV spending by AdImpact found as of last week, Protasiewicz and liberal groups supporting her had spent more than $11 million while Kelly and conservative organizations had spent about $6 million. Add it up, and Wisconsin is in the midst of the most expensive Supreme Court race in U.S. history.

"It very much looks like a legislative race, or a gubernatorial race, and those two branches are meant to be political, partisan, issue-driven," Geske said. "The court is to be the third branch that balances that."

Moving to the 'Missouri Plan'

Geske suggested Wisconsin would be better off adopting what's known as the 'Missouri Plan.' Under the system, which is used by 14 states, a bipartisan or nonpartisan commission will nominate a list of judicial candidates.

From there, the governor will appoint a justice from that list. After the justice has served a defined term, the public will then vote on whether to retain that justice.

Miriam Seifter, a law professor at UW-Madison and faculty co-director of the university's State Democracy Research Initiative, said there are compelling arguments both for and against electing high court justices.

"Judicial elections give the people a voice, and they create accountability to voters," Seifter said.

At the same time, Seifter said justices might feel pressure to satisfy either the general public or their campaign donors, as opposed to being strictly guided by their interpretation of the law.

She added the flood of campaign spending, even in nonpartisan races, could lead to judicial elections being determined by shrewd campaigning or political issues instead of their qualifications.

"The advertising in judicial elections has become a particular worry," Seifter said. "Because, nowadays, it often gives an outsized role to scare tactics or attacks."

Politics and policymaking are at the core of this spring's Wisconsin election. Democrats' challenge to the state's near-total 1849 abortion ban will almost certainly end up before the Supreme Court. Protasiewicz has openly voiced her support for abortion rights. The court could also take up challenges to the state's election maps and the Act 10 legislation that rolled back the abilities of public worker unions.

At the same time, Seifter said appointed justices still feel political pressure.

"There's a political official who's making a selection," Seifter said. "And that person has donors."

Candidates defend current system

In their only debate of the campaign last week, both Protasiewicz and Kelly defended the idea of elected high court justices and the campaigns that come with them.

"I do not think Supreme Court justices should be appointed," Protasiewicz said.

Kelly said he was not concerned about the record levels of spending because he believed the advertising is an expression of speech.

"I don't have any problem with the outside groups coming in, having a conversation," Kelly said.

Geske said her concern was with the perception of the office. She maintained the spending, and endorsement process, has gone too far. While Geske said she didn't take issue with current justices endorsing candidates, she didn't like the optics of justices campaigning with the candidates.

Chief Justice Annette Ziegler, a conservative, endorsed Kelly Monday. Conservative Justice Rebecca Bradley has appeared at events with Kelly. The court's three liberal justices, Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky, have all campaigned for Protasiewicz.

"Unfortunately, I think those images enhance the view that this a partisan race," Geske said.