Let’s not mince words. The state Supreme Court constitutional amendment question on the ballot today is a "Get Shirley" amendment.
That doesn’t mean the voters shouldn’t change how the chief justice is selected; they should.
But let’s not pretend we all don’t know what’s going on here. By one read: Republicans in power are using that power to hunt out and destroy pots of liberal opposition. By another read: They are unrigging the game. Maybe it’s both.
But just because it’s political doesn’t mean it’s wrong. In this case, anyway.
Specifically, voters will be asked today whether they want to change how the chief justice is appointed. They should make that change.
Currently, the chief justice is selected based on seniority. That means that one justice, liberal icon Shirley Abrahamson, 81, who has been around forever, has also been the chief justice forever. To put her lengthy reign in context, Abrahamson has been on the court almost as long as I have been alive (she’s been on the court 39 years. I said "almost" – I wish I was still 39.) She’s been chief justice almost 20.
The change, if passed by voters, would hold that a majority of the court would pick the chief justice instead of it being a straight seniority appointment. Of course, the majority of the court is conservative so they won't pick Abrahamson. It’s highly dubious Republicans would be attempting this now if they didn’t already control the court. And, yes, they control the court in part because of massive spending by groups aligned with their ideas like Wisconsin Manufacturers and Commerce, which is also spending money on this referendum. I get that the justices aren't technically partisan. Whatever.
I haven’t supported all "Get Shirley" maneuvers. And there have been a host of them recently. In a broader sense, it is troubling the degree to which Republicans – who basically control everything at the state level – seem to be targeting one single liberal. There’s something unseemly about using the lever of power that way. Republicans won’t always be in control of everything (most likely). It’s important that any big changes be assessed for their staying power, not which party they benefit. Republicans should resist the urge to engage in political payback.
Thus, all of the "Get Shirley" proposals should be assessed on their own merits, apart from whether one likes Abrahamson or doesn’t (for the record, I don't agree with Abrahamson on much, but I respect her as a female pioneer).
I oppose two of the "Get Shirley" measures and support this one. Let’s go through them one-by-one.
First, the governor proposed raising the salaries of other justices to match that of the chief justice (Abrahamson). I oppose this move. Being chief justice comes with additional duties and responsibilities. It only seems fair for those extra duties and responsibilities to be compensated. It’s no different where I work; the person who is chair of the department gets a little extra pay for being chair (which is a beast of an assignment). I can’t think of a compelling reason to support this one, so I don’t.
Then, some time ago, various Republicans floated the idea that state Supreme Court justices should have age limits. The age of 75 was floated, which would, of course, result in the forced immediate retirement of… Shirley Abrahamson. This would be wrong.
For one, the age limit being talked about would quickly rule out a bunch of conservative justices from continuing to serve also – people who are very competent but are hardly young (Pat Roggensack, whom many think would be elected the new chief justice, is 74). Oops. For another, there’s no evidence that our eldest justice (yep, Shirley) is not competent to serve, either. She’s clearly competent to serve. Eighty isn’t what it used to be. Heck, Ronald Reagan was the Leader of the Free World at an age past the 75 proposed mandatory retirement age for state justices and conservatives don’t care about that.
This strikes me as blatant age discrimination. I prefer to leave this one up to the voters. If a justice doesn’t seem able to do the job, vote him or her out. There aren’t age limits on the U.S. Supreme Court, and no one complains about that (although Ruth Bader Ginsburg, 82, seems fond of catnaps lately). But no one thinks Antonin Scalia, 79, or Anthony Kennedy, 78, are too infirm to serve. There is zero reason to push this one save to legislate one person (Shirley) out of office. That’s wrong.
This one has stalled maybe because conservatives realized that their candidate against Ann Walsh Bradley (also on the ballot today), Jim Daley, also is no spring chicken himself. If anything, I felt the age limit should be 90, if one occurred at all, well past Abrahamson’s current age, so it wouldn’t affect any justice immediately. 75? No way. 75 is the new 60.
Now for today’s amendment on the chief justice appointment process. I like this one. I also like the fact the change would limit chief justice terms to two years. That seems wise as the composition of the Court may change.
Liberals like to cite precedent- the fact that the current process is embedded in the state Constitution and has been since the 1880s. Were I in the Legislature, I wouldn’t have put this on my list of priorities. It’s not easy to change the state Constitution, nor should it be done lightly; however, this has passed the Legislature twice and now will go to the voters. So the voters get to make the call.
The only reason I can think to keep the seniority rule: It theoretically removes politics from the equation by just going by years of service versus a popular vote. But there is a compelling reason to alter the process that trumps that: The scenario by which the justice can be oppositional in philosophy to the court’s majority increases the chances of dysfunction and rancor. Especially when one justice has been on the court forever.
As chief justice, Abrahamson has presided over an increasingly divided and rancorous court. This has been awful for Wisconsin. She has shown an inability to mold the court into collaboration or compromise, and I think the current selection process sets things up almost to fall that way (or at least increases the chances they will). It’s been reported that Abrahamson has been a micromanager as chief justice, once even putting the kibosh on other justices’ newspaper subscriptions.
But thinking about the macro principle for a moment again: It strikes me that it makes more sense to have a chief justice supported by the majority. That strikes me as a scenario more likely to lead to consensus than division, and that would be healthier. And it strikes me that this would reflect more clearly the will of the voters, who, after all, picked that majority. So, again, the voters get more power here and generally speaking I defer to that. Furthermore, new blood every now and then is probably a good idea in any institution.
Some liberals have argued that this amendment instead undoes the will of the voters because the voters knew they were reinstalling Abrahamson as chief justice by giving her another term last time around. I think that’s silly. Let’s get real. Next to no one was thinking that when the voted her back on the court in general.
But the voters do get to make the call today, and I trust that they will make the right one.
Jessica McBride spent a decade as an investigative, crime, and general assignment reporter for the Milwaukee Journal Sentinel and is a former City Hall reporter/current columnist for the Waukesha Freeman.
She is the recipient of national and state journalism awards in topics that include short feature writing, investigative journalism, spot news reporting, magazine writing, blogging, web journalism, column writing, and background/interpretive reporting. McBride, a senior journalism lecturer at the University of Wisconsin-Milwaukee, has taught journalism courses since 2000.
Her journalistic and opinion work has also appeared in broadcast, newspaper, magazine, and online formats, including Patch.com, Milwaukee Magazine, Wisconsin Public Radio, El Conquistador Latino newspaper, Investigation Discovery Channel, History Channel, WMCS 1290 AM, WTMJ 620 AM, and Wispolitics.com. She is the recipient of the 2008 UWM Alumni Foundation teaching excellence award for academic staff for her work in media diversity and innovative media formats and is the co-founder of Media Milwaukee.com, the UWM journalism department's award-winning online news site. McBride comes from a long-time Milwaukee journalism family. Her grandparents, Raymond and Marian McBride, were reporters for the Milwaukee Journal and Milwaukee Sentinel.
Her opinions reflect her own not the institution where she works.