Sunday, September 16, 2012

Are Judges Non-Political? In Wisconsin?

Are Wisconsin Judges Non-Political in Wisconsin?

Supreme Court Justice Elena Kagan spoke to the University of Michigan Law School family on Friday, September 7 on the occasion of the dedication of South Hall, a new law building.

She was asked if the justices are affected by political considerations and controversy in their decisions. She answered with a clear negative.

She said “I don’t think it makes much difference in the way we operate, if at all.” She added “I would never say we go about our lives oblivious to it, but I don’t think it affects at all the way we go about our work.”

She also remarked “There is not a single member of this Court at a single time who has cast a ballot based on ‘Do I like this President or not?’ Do I like this legislation or nor?’ Will this help the Democrats or not?’

Yes, Lady Justice is blind. Justice is blind.

What else can she say?

Judges are human. Their decisions will be based, at least partially, on their existing mindset and backgrounds. For example, lawyer who represents managament will probably vote against unions as a judge and union attorneys will vote against management.

We understand this reality.

We recognize that the current United States Supreme Court is split 5-4 in many contentious cases with the only question being how will Justice Kennedy vote.

One of the most significant powers a President or Governor has is the appointment of judges. These are among the most political acts in government today. Both Democrats and Republicans recognize the power of the nine justices on the Supreme Court. Democrats often recognize that they may have to win from the courts what they cannot achieve through the political process.

President Obama appointed Solicitor General Kagan to the Supreme Court because she is reliably liberal just as President George W. Bush appointed Judge Samuel Alito to the Court as a true conservative appointment. The Republican Party will not tolerate another Justice Souter on the Court.

The debate in Wisconsin over the Collective Bargaining Statute enacted by the Republican Legislature and Governor Walker has given rise to two years of acrimony; fleeing legislators, recall elections of the Governor and legislators, contested judicial retention election.

And then we have two Circuit Judges in Dane County attempting to block the statute. Dane County is the most progressive county in Wisconsin, home to Madison and the University of Wisconsin.

Circuit Judge Maryann Sumi issued a temporary restraining order (TRO) on Friday, March 18, 2011, holding the Legislature procedurally violated the Open Meetings Law in enacting the statute. She promptly skipped town on a vacation.

The decision was destined for the Wisconsin Supreme Court, which had a consistent 4-3 conservative-liberal split. Conservative Judge David Prosser was up for reelection. The unions funded the campaign of JoAnne Kloppenburg, a reliable liberal, to defeat him and turn the Wisconsin Supreme Court. Judge Prosser narrowly won reelection and cast the deciding vote in upholding the statute. No matter how objective Justice Prosser might be, he cannot forget the vicious campaign that was waged against him by the unions.

Judge Sumi’s son, Jacob Sinderbrand, currently leads a political consulting firm “Left Field Strategies.” He previously worked as a lead field manager for the AFL-CIO and as data manager for the SEIU.

The unions were behind the litigation.

Her husband, Carl Sinderbrand, is chair of the Wisconsin advocacy group Clean Environment. He contributed to JoAnne Kloppenberg’s campaign against Judge Prosser.

“Justice” Sumi was not blind. Judges are not normally required to recluse themselves from a case just because their family members might have strong views on a subject, but a wise judicial temperament should have guided her to do so.

One problem when judges seem too politically motivated and biased is that their acts violate a fundamental  precept that “Not only must justice be done, but it must appear to be done.”

Dane County Circuit Judge Juan Colas last Friday ruled almost the entire statute unconstitutional under both the United States and Wisconsin constitutions. His 27 page opinion held the Act violated the Free Speech and Association Clauses of the constitutions and treated different classes of workers differently and unequally.

Unless there is a change in the composition of the Wisconsin Supreme Court, his decision will be overturned on a reliable 4-3 vote.

Just as a sidelight, the Wisconsin State Bar awarded Judge Sumi “Judge of the year,” quite an honor for a judge whose decision was reversed.

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