The results are now final in the election for a seat on the Wisconsin Supreme Court. The latest recount confirms that incumbent Justice David Prosser defeated Assistant Attorney General JoAnne Kloppenburg by slightly more than 7,000 votes. What does this have to do with Missouri? The entire process offers a case study in how not to select justices on a state supreme court.
The Missouri Nonpartisan Court Plan, which has been in place since 1940, has attracted lots of critics from both the left and the right. While the plan admittedly has its flaws, they pale in comparison with those inherent in choosing supreme court justices in popular elections.
Justice Prosser was one of four members of the Wisconsin Supreme Court who voted to uphold the validity of a law that would restrict the rights of public employees to engage in collective bargaining. This same law was later voided by a county circuit judge and the case has gone back to the supreme court. Amidst the confusion of all these legal maneuverings, itís important to keep in mind that the issue before the various Wisconsin courts has never been whether public employees should have the right to form unions. Rather, the question before the courts was simply whether the Wisconsin legislature had complied with the stateís open meetings law when it passed the bill that would curb this right. These are two very separate and distinct legal questions.
These important legal distinctions were obscured in the acrimonious public debate that ensued and the battle lines were formed. Labor unions and their supporters spent $1.8 million in an effort to remove Justice Prosser. Businesses and their allies spent $2.7 million to keep him on the Court. Taking into account the public money received by both candidates, a total of $5.4 million was spent. All across the country the election was seen as a referendum on union rights.
This is a corruption of what the judicial process ought to be and should serve as a cautionary tale for Missouri. Does anyone seriously think that the special interests who poured millions of dollars into the Wisconsin Supreme Court election were actually concerned about conflicting interpretations of the stateís open meetings law? Closer to home, does Missouri want supreme court justices whose interpretations of our stateís open meetings law would depend on who benefits from a given piece of legislation? Do we really want special interests spending millions of dollars in an effort to buy decisions that suit them in our supreme court?
Until a few months ago Justice Prosserís seat on the Wisconsin Supreme Court was generally seen as safe and secure. It was only when he joined a majority of the Court in a controversial decision over open meetings that opponents launched a costly campaign that nearly removed him from office. Do we really want our supreme court justices to decide cases under a constant threat from well-funded special interests? Special interests who are prepared to spend millions of dollars to remove judges from office if they donít rule in their favor?
Thereís no denying that the Missouri Nonpartisan Court Plan has its problems. But, as the current fiasco in Wisconsin shows, for all its faults the Missouri Plan is still better than a lot of alternatives.
(The opinions expressed are not necessarily those of St. Louis Public Radio.)
Tom Schlafly is an attorney in St. Louis.