Wisconsin has three branches of government and two ways of electing members of those branches.
The three branches are familiar enough: executive, legislative, judicial. The two ways of electing members of those branches are a bit trickier.
The governor, attorney general, state treasurer and secretary of state are elected in partisan races, as are members of the Assembly and Senate.
But circuit and appellate court judges and state Supreme Court justices are elected in nonpartisan contests, as is the state superintendent of public instruction.
In this era of hyper-partisanship, the lines often blur and contests for Supreme Court and superintendent of public instruction can seem virtually indistinguishable from partisan races.
But there are distinguishing features. When Chief Justice Shirley Abrahamson ran for re-election in 2009, she had the backing of progressive Democrats such as Lt. Gov. Barbara Lawton and now-Sen. Tammy Baldwin, as well as Republicans such as former Gov. Scott McCallum and former Congressman Mel Laird. Laird, who served as Richard Nixon’s secretary of defense during the Vietnam War, will never be accused of being a liberal. But he said of Abrahamson: “I’ve known Shirley for 30 years. She’s everything Wisconsin wants from its public officials and, particularly, its judges. She’s independent, tough-minded, hardworking and, above all else, fair. She’s committed to the people of this state and its values.”
Laird was upholding the best traditions of a state where both parties historically believed in putting partisanship aside in choosing top jurists and the head of public education. Unfortunately, that tradition has been assaulted in recent years.
And it will be tested this year.
In the Supreme Court race, Justice Patience Roggensack has aligned with an activist majority that has made the high court a rubber stamp for Republican Gov. Scott Walker. Top Republican strategists have prominent roles in the Roggensack campaign. At the same time, one of Roggensack’s challengers, attorney Vince Megna, loudly proclaims: “I’m a Democrat, there’s no doubt about that.”
Only the third contender in the Feb. 19 primary seeks to uphold the Wisconsin tradition of nonpartisanship in judicial races. Marquette University Law School professor Edward Fallone, a top constitutional scholar, rejects partisan labels and partisan politics.
“The Wisconsin Supreme Court is dysfunctional and the only way to fix it is to change the personalities on the bench,” said Fallone.
“I am not beholden to any political party or faction on the court or any special-interest group,” he added. “The people of Wisconsin expect — and deserve — judges who respect the importance of an independent judiciary and who are impartial and fair. That is the kind of justice I will be.”
Stating the obvious with regard to scandal-plagued Justice David Prosser — who Justice Roggensack has aligned with politically and repeatedly defended — Fallone said: “The increased politicization of the court and the court’s dysfunction exemplified by its inability to credibly handle allegations of inappropriate behavior by Justice Prosser are clearly damaging the court’s ability to deliver justice and serve the people of this state.”
In his approach to the race, Fallone is a throwback to a different time, when judicial politics had more to do with the judiciary and less to do with politics. If he succeeds, his approach could go a long way toward restoring the battered credibility of a once-great court.
John Nichols is associate editor of The Capital Times. firstname.lastname@example.org