On Tuesday, Janet Protasiewicz defeated Dan Kelly for a seat on Wisconsin’s Supreme Court. At $42 million, it was the most expensive state Supreme Court race in our nation’s history. The outcome swings the Wisconsin court’s majority away from a textualism and originalist orientation and toward more purpose-driven or evolving readings of the law. It’s being described as a victory for progressives, since it’s the first time their preferred justices will have the majority since 2008 — just in time to address likely cases on abortion and gerrymandering. The election exposes continued electoral woes for the GOP, especially on the abortion issue.
Another broader problem exists, however. The election never should have happened. Not because of the outcome, which of course conservatives are lamenting. We shouldn’t make arguments about how we select our officials merely based on whether it will get our people in office here and now. Nor should the election not have occurred because it violated the U.S. Constitution. States may select their judges as they see fit. But they should not pick their judges through popular elections.
If states scuttled judicial elections, they would have the Constitution’s own practice for support. That document doesn’t allow for a popular vote to select any federal judges. Instead, the president nominates and the Senate confirms all district, circuit and Supreme Court judges. The Founders constructed federal judicial selection this way for good reason.
