I woke up this morning to an NPR discussion on the virtues of getting rid of supreme court elections, and having the justices appointed by the governor, instead.

The argument seems to be that the campaign run by Mike Gableman and his third-party surrogates spent too much money, was too negative, and was largely based on lies and distortions. This is an extremely rare phenomenon known as “convincing people to vote for you instead of the other guy”, and it’s obviously very dangerous. If only we could get the money out of politics, then our civil discourse would be magically elevated to the level of a university debate (*).

It always sounds like sour grapes when the losing side proposes to change the rules. That’s true even when the rules should be changed. Did Al Gore get more votes than the guy who won? Let’s replace the electoral college with the popular vote. Did Franklin Roosevelt win too many elections? Let’s have term limits. Did the Senate not like President Bush’s judicial nominees? Let’s abolish the filibuster. Did WMC buy themselves two supreme court justices in one year? Let’s appoint the supreme court.

In the case of the Wisconsin supreme court, however, the rules change seems unnecessary. Unlike Annette Ziegler, for example, Gableman does not appear to be corrupt. I’d rather he wasn’t on the court, but whatever. You have elections, and sometimes the other side wins.

There are two problems above and beyond the “the other side has too much money, and is too mean” argument, and neither of them will be solved by appointing justices.

The first is the pretense that Supreme Court justices are neutral arbiters of the law with no ideological convictions. Giving the governor the authority to appoint judges will merely change the way in which this charade is played out. Justices will still have their own ideologies, conservative governors will appoint conservative judges, and liberal governors will appoint liberal judges.

Instead of accusing the liberal candidate of being a werewolf, WMC will run commercials warning us that Governor Doyle will appoint werewolves to the court. This does not seem likely to improve anything.

The second, and more important, problem, is the persistent inability of liberals to challenge the conservative argument, now almost universally accepted, that conservatives “uphold the constitution” while liberals “make up laws”.

No number of studies pointing out that conservative judges strike down more laws, overturn more precedents, and rule more predictably along partisan lines, will change this framework if liberals are unwilling to talk about civil rights versus majority rule (soft on crime!), or about the freedom of action available to the legislature (activist judges!), or about the rights of citizens to petition the government (frivolous lawsuits!).

In the meantime, “it’s difficult for my side to win” is not a very good reason for getting rid of an election.

On the other hand, I have a lot of sympathy for moving judicial elections to the fall. It’s relatively easy for interest groups to pour tons of money into off-season “non-partisan” elections with low turnout. When only one voter in five bothers to show up, it’s easy for WMC’s machine-gun approach to politics to make a big difference. It’s somewhat harder when they’re only one player among many.

During a general election, turnout is higher, more people are paying attention, and the process is more likely to generate a result in accordance with the majoritarian opinion of the state, even if, as seems likely, that opinion currently prefers conservative judges to liberal ones.

(*) That might be a misnomer, inasmuch as I seem to remember that a common form of university debate was standing in a group and hectoring passers-by with signs, a bullhorn, and sidewalk chalk.

Posted by Ben Brothers at 10:38 am, 7 April 2008 and filed under Wisconsin News. You can follow any responses to this entry through the RSS 2.0 feed.