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The Wisconsin Supreme Court election cost $40 million. There could be a better way

AYESHA RASCOE, HOST:

As we mentioned, Wisconsin voters elected a pro-abortion rights judge to the state Supreme Court. The election also set a new record for most expensive state Supreme Court race, over $40 million by one estimate. And all that money has raised concerns about the independence of state courts. Alicia Bannon is director of the Judiciary Program at the Brennan Center for Justice. She's written about the problems with the current system and some possible solutions. Welcome to the program.

ALICIA BANNON: Thank you.

RASCOE: So what can this very expensive election in Wisconsin tell us about the state of judicial elections around the country?

BANNON: Judicial elections used to be really sleepy affairs, and that is no longer the case. We've increasingly been seeing high-cost, very politicized judicial elections with a lot of money and a lot of special interest attention because state supreme courts are increasingly important venues for protecting key rights like abortion rights, also democracy issues. Partisan gerrymandering was very much on the ballot as well in Wisconsin. And so I think increasingly we are going to see more and more money pouring into these races, particularly in states like Wisconsin, where there may be an opportunity to shift the ideological direction of a court.

RASCOE: I mean, how do other states handle selecting judges because they don't all run on elections, right?

BANNON: So it varies across the country. Thirty-eight states use elections as part of their system for choosing their highest court judges. In 22 states - and this includes Wisconsin - judges stand in contested elections where you can have multiple candidates vying for a seat. Several other states, 16, use an appointment retention system where judges are initially appointed to the bench, but then they stand in up-or-down retention elections. And then in the remainder of the states, they're either appointments by the governor or, in two states, we have appointments by the state legislature. So there's quite a bit of variation. But elections are quite common, and the U.S. is quite unique in that front, and I think there is good reason for that. Judges aren't supposed to be politicians in robes. Judges are supposed to be deciding cases based on the law in front of them and the facts in front of them.

RASCOE: What could be some possible solutions to those concerns? I know you've written about nominating commissions and argue that they're the best way to go on this, but what is a nominating commission, and how would that work?

BANNON: So I'd highlight two reforms to think about in response to the world that we live in right now with these highly politicized, high-cost judicial races. One would be moving towards a publicly accountable appointment system and, as part of that, having a nominating commission that's independent of the governor that vets judicial candidates in the first instance and provides a short list to the governor. If you have a diverse commission and they operate transparently, that can be a really powerful way of limiting the influence of special interests and addressing some of the concerns about crony dynamics that otherwise can be a big concern in appointment systems.

The other reform that I would lift up would be thinking about moving towards a lengthy single term for state Supreme Court justices rather than having them stand up for new elections or reappointment processes because in almost every state, judges have to stand for some kind of reselection process. And that is the moment where judicial independence is most at risk, when you have judges that are hearing cases, having to think about how their decisions are going to play out in the next judicial election. And there's a lot of evidence that that actually is the case, so judges sentence more harshly in election years. There's evidence that judges' behavior change. When they hit a mandatory retirement age and are no longer going to have a reselection moment, they suddenly start behaving a lot more independently.

RASCOE: How do you avoid nominating commissions also being, like, swayed by politics?

BANNON: In terms of how you can design a nominating commission to minimize those kinds of special interest influence, it's very important to think about exactly how you're designing that commission as well as how that commission operates. So you want to have commissions that are operating in public who's decision-making is done in a transparent way so that you don't have backroom negotiations. And it's very important how those commissioners get selected.

RASCOE: The current system has, you know, benefits for political parties. Is there a movement where there actually could be reforms, and has something like this happened before?

BANNON: So we haven't seen a lot of movement around judicial selection reform in the states in the past several decades. But if you look back in American history, we have seen these waves in the past. So judicial elections, for example - they didn't exist at all in the time of the founding. They came about in the later part of the 19th century as a judicial independence reform. People were concerned that judges were too closely tied to the political branches, and so judicial elections were seen as an accountability mechanism. Later, there was a wave where you saw a host of nonpartisan judicial elections take effect because there were concerns about the influence of political parties. And in the '50s, '60s and '70s, you had a move towards merit selection systems where you had the adoption in many states of nominating commission systems coupled with retention elections. And so we've seen that happen in the past, and I think we may be in a moment or coming to a moment where there could be another opportunity for such a wave.

RASCOE: That's Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice. Thank you so much for joining us.

BANNON: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.
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