From the diaries . . .
Once again, Wisconsin is the nation’s poster child for controversial decisions that damage our electoral process. This time, it’s Wisconsin’s judiciary that’s implicated as liberal judges are revealing their partiality and engaging in political activism. Perhaps this problem would be best understood with a baseball analogy.
Suppose Milwaukee Brewer Ryan Braun was facing a panel of three judges (instead of arbiters) for his hearing on his “alleged” steroid use. Now, imagine that one of these judges had publicly stated that he was a lifelong Chicago Cubs fan and season ticket holder. Brewers fans would understandably be incensed that this judge was on the panel because his personal views on the subject of the case were likely already formed and would bias him against a Brewer.
A comparable but obviously much more serious situation has become a reality on a different front in Wisconsin. Judge David Flanagan recently ruled that Wisconsin’s Voter ID law (Act 23) was unconstitutional. Judge Flanagan also signed a recall petition, thereby disclosing some of his ideological views which favor liberal political forces. Conservatives are rightly incensed that Judge Flanagan failed to disclose that he had signed a recall petition and then failed to recuse himself from the case.
Unfortunately, Wisconsin’s judicial integrity problems are not limited to one judge. You may remember the infamous Judge Maryann Sumi, who ruled that Act 10 (Budget Repair Bill) violated the Wisconsin Open Meetings Law, before being overruled by the Wisconsin Supreme Court. The Wisconsin Bar Association rewarded her judicial activism by incredulously honoring her as “Judge of the Year.”
Most recently, an investigative report from the Gannett Wisconsin Media found that 29 Wisconsin lower court judges had signed a recall petition. That represents roughly 12 percent of Wisconsin’s lower court judges and an astounding 25 percent of Milwaukee County’s lower court judges. The Landmark Legal Foundation, led by Mark Levin, sent a letter to the Wisconsin Judicial Commission asking them to investigate the judges for impartiality.
One of the judges claims that the Wisconsin Judicial Commission said it was permissible to sign a recall petition without violating the Wisconsin Code of Judicial Conduct. Of course, the Wisconsin Judicial Commission’s Executive Director will not confirm providing any such counsel to those who sit on the bench and hold enormous influence over the process.
The Wisconsin Judicial Commission also made news last week when they filed a complaint against conservative Justice David Prosser for defending himself when Justice Bradley charged into his personal space (in an incident last summer Justice Prosser’s hands ended up touching Justice Bradley’s neck according to interviews with several Wisconsin Supreme Court Justices). Media Trackers, a conservative investigative watchdog, discovered that the lead investigator in that case also signed a recall petition.
Wisconsin liberals are beautifully manipulating the judiciary to achieve their political victories since they were unable to win key legislative battles this year.
Rather than signing public documents that reveal their political ideology, Wisconsin judges should go to great lengths to avoid any appearance of partiality. While every judge likely has an opinion of their governor, they cross a line when they publicly announce that opinion.
Wisconsin judges would also be wise to listen to the sage words of Chief Justice John Marshall in the famous Marbury v. Madison Supreme Court case in 1803: "[i]t is emphatically the province and duty of the judicial department to say what the law is.” It is not the duty of the judiciary to say what the law should be.
If judges want to reveal their bias and use judicial activism, then judicial integrity will continue to be called into question. The political ideology of a few unethical judges can shake the foundation of our entire system. It’s time for Wisconsinites to demand that judges stay out of the political arena. Any judge who signed a recall petition should be barred from hearing a case related to the recall effort or any case arising from the upcoming election.
Matt Batzel is a member of the State Bar of Wisconsin and is the Executive Director for Wisconsin of American Majority, the nation’s leading national conservative grassroots training organization. To learn more about American Majority visit www.AmericanMajority.org.