Robert Meyer
Wisconsin's Supreme Court election is about judicial philosophy
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By Robert Meyer
March 31, 2016

I am delighted the competition for the GOP nomination between Ted Cruz and Donald Trump isn't over just yet. This is not because I am hoping for a brokered convention this summer – a possibility that became the talking point Du Jour in March. My reasons are quite different. Here in Wisconsin we have our presidential primary on Tuesday April 5th. An important judicial election coincides with the primary. The ongoing federal nomination process insures many motivated conservatives will be at the polls to also vote in the judicial election, helping the prognosis for the conservative candidate.

The candidates in the Wisconsin election for Supreme Court Justice, liberal Joann Kloppenburg and conservative Rebecca Bradley, are both described by the mantra, "Fair, impartial, and independent," or some similar boilerplate.

Fair perhaps, but impartial and independent – not a chance. These are idealistic judicial attributes, normative only in an ethereal world of butterflies and daisies. Too many people today can't discern the difference between reality and what ought to be.

The late law professor Robert Bork, in his tome Slouching Toward Gomorrah, lamented that virtually all social issues have become politicized. Likewise, there's little reason to suppose the judiciary isn't equally politically tainted.

Numerous editorial pieces and attack ads have criticized each candidate for various reasons, but these justifications for opposing one candidate or the other are peripheral issues that masquerade the real stake in this election.

Years ago, I was mentioning the importance of the judicial issue to a politically astute friend. He expressed that the issue of judicial philosophy is an arcane consideration for most people. I found that observation alarming. When one considers that so many topics of concern affecting cultural drift are ultimately settled in the courts, the activism of judges should be front and center. I am more concerned with the type of judges a particular candidate will nominate, than I am with the positions taken by the candidate themselves.

What galls me more than anything else is the emphasis on these less important issues that distract voters from the most fundamental issue: judicial philosophy. As a case-in-point, one letter to the editor undersigned by five judges endorsing Kloppenburg, cited her "breathe of experience," service in the Peace Corps, and that she raised three children, as though these points were somehow relevant to Supreme Court adjudication. They might be fine qualifications if social worker were an elected position. Nobody mentioned judicial philosophy as a crucial factor.

During the judicial primaries, Bradley ran an effective radio spot emphasizing the need to recognize and respect the separation of powers doctrine. Judges aren't supposed to act as legislators. I'll never approve of a judge who won't concede that.

The main-stream media and pundits from the left appear interested in ignoring the question of judicial philosophy, hoping that nobody will emphasize its existence and importance.

This is a struggle between two divergent judicial philosophies: "Legal positivism" and "Original intent jurisprudence ."

Legal positivism is best expressed by the late Chief Justice Charles Evans Hughs, who quipped that

"...we are under a Constitution, but the Constitution is whatever the judges say it is."

This perspective allows judges latitude for creative interpretations to reach a desired outcome.

Original intent jurisprudence is represented by this quotation from James Madison.

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution."

Here constitutional interpretation is confined to determining the intent of law-makers.

As this applies to Wisconsin's election, it sounds more righteous and less partisan to claim that you oppose a candidate because they released a dangerous criminal on a technicality or that one candidate is in bed with big business.

Despite the diversions, the political smart money knows voting for Kloppenburg is a step toward creatively invalidating or overturning legislation passed under the Walker administration, whereas voting for Bradley is a vote to uphold it.

We must know for what we are voting.

© Robert Meyer

 

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Robert Meyer

Robert Meyer is a hardy soul who hails from the Cheesehead country of the upper midwest... (more)

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