More than two dozen Wisconsin judges from 16 counties were among the tens of thousands of people who signed petitions to recall Gov. Scott Walker, according to a newspaper analysis.
The review by Gannett Wisconsin Media found that 29 judges, or about 12 percent of the state's approximately 250 county-level judges, signed the petition, the Sheboygan Press reported Sunday (http://shebpr.es/y8R8Pk ). Milwaukee County had the most judges sign the petition at 11, or about one-fourth of judges in the county.
So why would you do that? If you're supposed to be seen as impartial, what's the justification for being a partisan? Here's one explanation:
"What I did by signing the recall petition is say that the people of Wisconsin should be allowed to vote again for governor," said Milwaukee County Judge Charles F. Kahn Jr. "I did not support any candidate and I did not support any political party. This is a substantial and important distinction."No, actually it's not a "substantial and important distinction." Kahn knows that the governor serves a 4-year term and will certainly face the voters again in 2014. The reason governors get a four-year term is precisely because they need to be able to do the job without facing imminent re-election campaigns. And let's be blunt here -- only one political party wants the recall, so for Kahn to claim he's not supporting any political party is baked wind.
And if you've been following the case, you also know this:
Still, at least one judge has been under scrutiny. Dane County Judge David Flanagan has been under fire for not disclosing his support of the recall before he issued a temporary restraining order against a Walker-backed voter ID law. The Wisconsin Republican Party has filed a complaint with the state Judicial Commission, arguing that Flanagan should have revealed that he signed the petition.It should be obvious what the problem is here. In a world where everything is politicized, if the judiciary is seen as politicized, it loses legitimacy. To the extent that at least these judges were honest enough to admit their partisan nature, it's useful information. What's maddening is sophistry of the sort Kahn provides for a justification for his actions. He understands that, as a Milwaukee County judge, there's little chance he'll have to account for his partisanship, but frankly he shouldn't have the chance to rule on anything political on a going forward basis.
Another judge had a better take on the matter:
"When you sign up for this job, to some extent you compromise your ability to express your own political beliefs one way or the other," said Brown County Judge Marc Hammer. "I think if you're asked to judge the conduct of others, you need to be mindful of what your conduct is."
10 comments:
This is why I support the retention election idea in Minnesota. Judges should be above partisan politics.
Is there a law prohibiting WI judges from signing such petitions?
When I was on the federal payroll, I was subject to the Hatch Act, which limits the political activities of public employees, and goes to great pains to delineate what is and is not permitted. IIRC, the big no-no's were electioneering in your gov't capacity (i.e., "I'm Dr. Brian of the NIH and I support Gov. So-and-so for reelection") and running for office in a partisan race. I believe I could still join a political party, be a party officer, campaign as a private citizen, and even run for non-partisan office. I certainly could express opinions publicly, as long as I kept my affiliation out of it.
I can see particular situations in which a judge on public record supporting the recall might need to recuse him/herself from cases dealing with the governor (and certainly any pertaining the recall itself), but unless there is a law specifically saying so, I don't see why judges should have to abdicate all forms of political expression.
Signing a recall petition is pretty much in the same category as voting, no?
Brian, I think the distinction is that voting is private and signing petitions is public. The question doesn't really go to the actual impartiality of the judge, but the perceived impartiality. I say that they have a right to sign petitions, but I think they do themselves and their state a disservice in doing so.
OK, but...are judges meant to be perceived as impartial about everything, at all times? How is that even possible? I don't see how being on the record about the governor impacts their impartiality for ruling on things that have nothing to do with the governor...which I imagine is 99.9% of their docket. Like I said, if there is a direct conflict (or even a perceived one) in a particular case, they should certainly recuse themselves from that case.
I feel like I'm missing an important piece of information here.
OK, but...are judges meant to be perceived as impartial about everything, at all times? How is that even possible?
No, I don't think that they are meant to be that and no it isn't possible. But perhaps discretion is the better part of valor in some cases. I don't think there's a more contentious issue in Wisconsin right now and weighing in on this one seems unwise to me. Not least because it isn't a distinct issue, but a kind of symbol for a host of issues. I think they are inviting people to distrust their rulings, especially if they seem partisan.
On the other hand, it doesn't necessarily work out so well when people pretend to be something they're not. From a conservative point of view, the press is a not-so-shining example of this. So maybe it's better that they just let their partisan flag fly?
OK, but...are judges meant to be perceived as impartial about everything, at all times? How is that even possible? I don't see how being on the record about the governor impacts their impartiality for ruling on things that have nothing to do with the governor...which I imagine is 99.9% of their docket. Like I said, if there is a direct conflict (or even a perceived one) in a particular case, they should certainly recuse themselves from that case.
Yep. And in the case involving Judge Flanagan, he ruled on a political matter and his partisanship came out after the fact.
No one who follows Wisconsin politics expects a Dane County judge to be impartial -- Dane County is one of the most Democratic places in America, which is why the Democrats sue every time the Republicans try to do anything and drag it in front of a Dane County judge. They did the same thing last year with the law that set the unions off in the first place. Eventually the judge in that case got swatted down and humiliated, but she slowed down implementation long enough to allow the unions to strong-arm a number of districts into contracts that were much more favorable to the unions. And in many cases, neighboring school districts that didn't get strong-armed are now saving millions of dollars in costs. The irony is that the school districts that didn't bow to the unions ended up hiring more teachers and some of the districts that did the union's bidding ended up cutting teaching positions because of the costs.
I don't blame the unions and the Democrats for trying everything they can to save their empire in Wisconsin, but at some point either an election means something, or it doesn't. And when judges become something other than impartial arbiters in a dispute and instead are actors, it's a huge, huge problem.
The good news in this case is that Walker is likely to win and that will be the end of this for a while.
Mr. D,
I agree with you politically, but practically what are you suggesting? That judges should be legally prohibited from doing certain things?
The problem I have with them is less their political involvement, that the fact that some of them at least are hacks. But how do you deal with that other than by voting them out? Impeachment?
I guess what I'm saying is that I have an idea of how things should be, but I'm not sure how you get there.
I agree with you politically, but practically what are you suggesting? That judges should be legally prohibited from doing certain things?
No, I don't think you can legally prohibit this sort of thing, but social opprobrium seems appropriate, wouldn't you say?
Now the world knows that Flanagan is a much of a hack as his colleague, Marilyn Sumi, revealed herself to be last year.
In a world where everything is politicized, if the judiciary is seen as politicized, it loses legitimacy.
What if it is politicized and this convention of neutrality is the only thing preventing us from seeing it in all its naked glory? If the law is only marginally the basis for judicial decisions is it better to know that? Or is it better to keep the facade up for the sake of stability?
As a side note: It seems that there are a lot of compromised institutions these days.
If the law is only marginally the basis for judicial decisions is it better to know that?
I suppose, but if that is indeed the case, we are well and truly hosed.
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