From the newly coed campus of Yale University to bureaucratic offices in Botswana to a quiet state judge’s office in Madison, Wisconsin, JoAnne Kloppenburg ’74 has always sought to maintain a dedication to fairness and justice. Among the first women to graduate from Yale College, she earned a degree in Russian Studies and then worked in the Peace Corps before finally finding her niche in the Wisconsin Department of Justice’s environmental unit. However, Kloppenburg’s belief in the possibility of a truly just state legal system began to fade when she decided to engage with one of her state’s largest myths of judicial fairness: nonpartisan judicial elections in Wisconsin.
Although justices technically run as nonpartisans in the Wisconsin elections, the last two decades have seen an intense politicization of the state’s high court that threatens their independence.
Stepping up to prevent a politically-appointed judge from being able to run unopposed, Kloppenburg challenged David Prosser, an appointed interim judge on the Wisconsin Supreme Court, in his 2011 race.“I think it’s really important that people challenge incumbents because it’s important, even though they’re nonpartisan, for a judge to go around and talk to people and see what’s on their mind and what concerns them,” Kloppenburg said in an interview with The Politic.
However, the realities of “nonpartisan” judicial elections quickly tempered her optimism in the nonpartisan process and the democratization of justice. The day before the first 2011 primary, Republican Governor Scott Walker introduced Act 10, a controversial bill severely limiting union activity in Wisconsin that spurred months of protest in the capital. Suddenly, the race became about which judge would uphold or strike down Act 10. Outside interest groups poured money into the race, including at least 3.5 million dollars spent by conservative groups like Wisconsin Manufacturers & Commerce and Citizens for a Strong America, a PAC with connections to the Koch brothers, who wanted to keep Prosser on the bench to protect Walker’s agenda. Millions of dollars worth of attack ads ran in the weeks leading up to the election – millions of dollars that Kloppenburg’s publicly financed campaign could not match. Though some polls had put her ahead before election day, Kloppenburg lost her 2011 bid by 7,006 votes.
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In this age of deepening partisan cleavages, judicial experts point to these instances of intense political influence in a process intended to produce a set of independent, nonpartisan justices as signs that partisanship has crept into the supposedly impartial courts. They worry that keeping policies and systems that were designed without considering these political influences will enable the deterioration of independent state courts.
Though judicial elections like Kloppenberg’s 2011 run are obvious examples of partisanship permeating the judicial branch, other contemporary justice selection models are being reconsidered as partisan influence finds its way deeper into state courts. While some form of election is the most popular method – 21 states use either partisan or nonpartisan elections to choose their judges – the next most popular is the Missouri Plan, which 14 states currently employ. Under the Missouri Plan, the governor appoints a judge recommended by a nonpartisan commission who then has to stand for a retention election at the end of each of their terms.
However, as an infamous retention election in Iowa in 2010 showed, the Missouri Plan does not perfectly protect against operatives who seek to influence the independence of the courts in this deeply partisan age of politics. The year prior, the Iowa Supreme Court handed down a unanimous decision in Varnum v. Brien striking down the state’s ban on same-sex marriage. Outraged interest groups against same-sex marriage organized a massive campaign in response, seeking to unseat the three judges who happened to be up for retention election the next year.
Marsha Ternus was the Iowa Chief Justice when the Varnum decision came down and was one of the judges attacked by conservative interest groups. Ternus and the other two targeted judges decided to not run a campaign in defense of their decision, not wanting to engage in the political battle. Ultimately, the out-of-state conservative and religious interest groups’ aggressive campaigns were successful enough to unseat all three judges in the retention election.
After 17 years on the Iowa Supreme Court, Ternus now practices law and lectures on judicial independence, and she looks back on her time on the court with appreciation for her colleagues. Ternus emphasized that as chief justice, she was confident in her fellow justices, saying, “We were all committed to approaching each issue with an open mind and making decisions based on the rule of law.” She now views the system more warily. While she has faith in the decisions of the current justices, she worries about judges who might bring preconceived notions to the bench.
As scholars reckon with disquieting displays of politics seeping into the court, they point to different cases as the turning point for state courts. Some see the Bush v. Gore decision, which settled the recount dispute in the 2000 presidential election, as the moment when partisan interest groups first recognized the large role state courts could play in important political issues. Others in states with judicial elections see Citizens United v. FEC, the 2010 United States Supreme Court decision prohibiting restrictions on independent campaign contributions, as the key point in which interest groups could begin to use their money to influence elections. From states deep in the throes of partisan influence like Wisconsin to those more resistant to influence under the Missouri Plan, experts and activists are working to temper the ability of partisan interests to influence judicial makeup.
The Brennan Center for Justice, a nonpartisan law and policy institute out of New York University Law School, has been tracking the rise in judicial partisanship and seeking policy reforms to address these concerns. This work resulted in a three-year project published in 2018. Douglas Keith, a member of their counsel team and a specialist in elections and fair courts, spoke in an interview with The Politic about the short- and long-term policy reforms needed to return a better balance of powers.
After studying the trends in judicial partisanship, scholars at the Brennan Center decided on an extensive two-pronged policy recommendation: opting for appointment systems over elections and limiting judges to a single, lengthy term. “You obviously want high-quality judges, you want transparency in the selection process, you want some measure of democratic accountability,” Keith said. In forgoing judicial elections, advocates are aware of people’s mistrust in potentially biased methods like an appointment system. Acknowledging this, Keith and his team emphasize the importance of having a diverse, nonpartisan nominating commission with strict rules dictating appointee criteria. They further argue that limited terms would help remove justices’ decisions from political pressures, a policy proposed by the State Bar of Wisconsin a few years back.
Keith and his team at the Brennan Center recognize the difficulty of changing an entire judicial selection system. But they still point to reforms that can limit political influence on judicial elections like public financing, the option Kloppenburg used to finance her first election.The law ensured that candidates who received 1,000 contributions of $5 to $100 at the start of an election period would get $100,000 in a primary and $300,000 in a general election but could not raise money themselves. Indeed, according to Kloppenburg, this policy often can encourage participation by female and Black judges, who, like herself, may not have family wealth or political connections on which to rely.
Public financing also limits judges’ connections to campaign donors who may later appear before them in court. In these instances of judges presiding over cases involving past campaign donors, the Brennan Center recommends stronger recusal rules dictating when a judge should or must recuse themselves from a case because of a conflict of interest with one of the parties arguing the case. Despite having a system that provides the most connections between judges and campaign donors, Wisconsin’s recusal rules are relatively weak. Notably, recusal rule changes can only be introduced and approved by the justices themselves, making them unlikely to occur. Thus, all activists can really do is offer recommendations; in 2017, 54 retired Wisconsin judges signed a petition asking for mandatory recusals from cases with campaign contributors of significant amounts of money. However, in a five to two vote, the justices rejected the petition.
Jay Heck, an activist who has spent the last 20 years as the director of Common Cause Wisconsin, a watchdog group that advocates for fair government reform, still remembers when the state was known as an exemplary example of judicial independence. When millions of dollars were spent in the 2007 and 2008 elections, he and his group worked to get the Impartial Justice Law that enabled the public financing option used in the 2011 election. However, to the dismay of Heck and fellow activists, Governor Walker and Republican legislators repealed the Impartial Justice Act shortly after the election, removing the public financing option. They also got rid of rules forbidding coordination between candidates and independent campaign groups.
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Despite her loss in 2011 and her overall disillusionment with her state’s judicial system, Kloppenburg decided to run for Wisconsin Supreme Court again in 2016. This time, without the public financing option, she found that campaigning was even more partisan than before. Both sides again poured in millions of dollars to get their desired candidate on the bench, but because there was no public financing, interest groups’ dollars were even more important than during her first run. And again, whether she liked it or not, Kloppenburg was associated with the liberal side of the election, and her opponent Rebecca Bradley was Republican-backed. Once again, Kloppenburg lost her run for the state supreme court.
In light of divisive elections such as Kloppenburg’s, activists feel an even more pressing need to enact the policies that could curb some of this partisanship in courts as they take on closely-watched cases. However, the very prescient reality for state courts right now is that very little of this legislation is in motion. In fact, in some states, there is pending legislation to curtail the power of the courts to check the legislature. In North Carolina, for example, State House Republicans were threatening to impeach liberal state supreme court justices if they did not allow Republicans to aggressively gerrymander maps in 2021-2022. Additionally, throughout the country, gerrymandering has emerged as one of the most intense and political fault lines for state supreme courts in the past year.
As state legislatures and political analysts pore over the data from the latest census to see how they can reconfigure their maps, the partisan conflict has made approval of the maps in many states virtually impossible without the intervention of the courts.
Kloppenburg identified these redistricting cases as some of the most pressing legal questions that the courts face right now. She pointed out that this issue is especially significant in the state courts this year, as the Supreme Court recently handed over the power to oversee redistricting to the state courts; in 2019, the Supreme Court decided in Rucho vs. Common Cause that partisan gerrymandering was a matter too political for the Court to take on and relegated this oversight to the state courts.
As Wisconsin gears up for another decade as a battleground state, a partisan battle is occurring over how to draw the state’s voting districts. Democratic Governor Tony Evers proposed a map that gave Democrats more competitive districts than the Republican-drawn maps of 2011, and the state’s Republicans quickly challenged it. Unable to resolve their differences, the two parties turned to the state court to decide on a map. While the court recently approved Evers’ map, the Republican legislature is now attempting to appeal this decision to the United States Supreme Court, though it is unclear whether they will take up the case. Heck from Common Cause explains that it’s unlikely, seeing as the high court recently struck down similar appeals in North Carolina and Pennsylvania, cementing the power state courts possess now in this important process of democracy.
As they look to the future of fair courts in Wisconsin, Heck and Kloppenburg have some tempered optimism. Long-time activist Heck emphasizes that to keep a system of judicial elections going, Wisconsin needs policies of strong recusal and public financing to let the elections do what they’re supposed to do. But he knows that maintaining these policies won’t be an easy or finished battle. “Political reform, it’s an ongoing thing. It’s not like once you do it, it’s done. It’s once you do it, you have to fight like hell to keep it.”
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For her part, Kloppenburg finally broke into the world of the Wisconsin state judicial system in 2012 when she won election to the Wisconsin Court of Appeals, the court underneath the state’s supreme court. She has found it to be the independent mix she desired of justices who represent the different parts of the state.
Though she entered her career in Wisconsin’s statewide justice system with optimism for independence and judicial elections’ power to deliver it, Kloppenburg now struggles to be able to look past the shortcomings of the system. She reflected sadly on the partisan-imbedded nature of the state courts. “I am a firm believer in elections, but I came to the reluctant conclusion that because the power of a person’s vote has been overridden by the power of money, there’s been such a distortion,” she said.
The increased interest in state courts by partisan groups makes Kloppenburg worry about the corrosion of the fundamental principle of separations of power. While judicial bias is inevitable regardless of the selection process, she and other experts argue that current vulnerabilities of the courts allow partisan groups to exert their influence beyond partisan state capitals to cultivate this bias on state courts and make it work for their interests.
As the country continues in its path of increased polarized partisanship, the supposedly closed-off courts are not far behind. Activists, judges, and experts continue to work within the complicated systems and laws of state courts to make whatever progress is possible to prevent this influence, but often with only limited success. In a system in which the court’s enforcement relies on the trust of the people, this loss of independence from partisan politics threatens their legitimacy in the public’s eyes and, consequently, the court’s power to wield any power at all.