While the outcome of the high-stakes race for a state Supreme Court seat in Wisconsin will benefit democracy, the process itself is very troubling.
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Democrats rejoiced this week after the liberal candidate, Janet Protasiewicz, flipped Wisconsin’s Supreme Court in what turned out to be the most expensive judicial race in history. The candidates, parties, and outside groups poured more than $30 million into this contest, which was dominated by the issue of abortion. Protasiewicz’s win was also hailed as a victory for democracy.
Sure, ostensibly, this is true. If it were a country, Wisconsin would probably rank somewhere close to Pakistan and Afghanistan on the democracy index (the US as a whole comes in at number 36 and is labeled a “deficient democracy,” both of which seem charitable assessments). Its districts are so unfairly drawn that Republicans are now holding a legislative supermajority in a state Donald Trump lost in 2020 and that elected a Democratic governor as well as a Democratic secretary of state.
Therefore, it is true that a liberal majority on the state’s highest court will be a good thing for democracy — especially if that majority ends the extreme gerrymander that has ensured that Democrats have no chance of retaking the state Legislature in an election.
But look at these paragraphs again, and it’s easy to see why this race is also a sign of how much democracy is ailing in the US.
“Liberal candidate,” “flipped,” “most expensive judicial race in history,” “outside groups,” “$30 million,” “dominated by the issue of abortion.” None of these words should appear in a story about a Supreme Court.
First of all, judges shouldn’t be elected; they should be chosen. And that choice should be made based on ability and not ideology. In addition, the higher the court, the more rigorous the confirmation process should be.
At no point in this process should there be ads or spending from outside groups. Finally, justices should not be chosen, nominated, or confirmed based on particular beliefs they hold.
Granted, all of that is how it’s supposed to work in the US Supreme Court… and it clearly does not. Ever since the high court hand-picked George W. Bush as president in 2000, things have gone rapidly downhill.
None of this is good.
Yes, the Supreme Court has made many bad decisions over the past 232 years. However, they were usually in line with how people felt at the time (and by “people,” we mean white men).
On the other hand, there have also been plenty of landmark cases that propelled the country forward more quickly than lawmakers wanted to.
This means that, at least in theory, the US Supreme Court can fulfill the role that the founders intended it to play.
It’s tough to see how Wisconsin’s high court will ever be able to do the same. It stands to reason that the next few races will be just as expensive and just as driven by ideology. In other words, rich people not only get an outsized say in who should write the laws and who should enforce the laws, but also in who should review them.
It’s telling that some Republicans are already thinking about impeaching Protasiewicz. What better way to demonstrate the disdain the GOP has for their constituents than trying to overturn an election — just like they attempted to do in 2020?
Moving to impeach a Supreme Court justice, perhaps even before she has heard a case, just because she might rule in favor of abortion and democracy, would also be the perfect illustration of the GOP’s approach to power: Wield it, no matter the cost.
But, setting aside that justices should not be elected, what this week has shown is that, once the playing field is more level, there is a good chance that Wisconsin Republicans will end up paying a steep price.