Next week Wisconsinites in 34 counties will elect some of the most powerful office holders in their communities: circuit court judges.

Making up the bottom tier of the state’s court system, Wisconsin’s 261 circuit court judges collectively handle hundreds of thousands of cases each year, ranging from speeding tickets to murder trials to challenges to state law. Elected to six-year terms, circuit court judges enjoy broad autonomy and far-reaching authority in the cases they oversee.

Despite that power, just 10 of 56 circuit court races on the April 2 ballot will feature a contested election. Among the 47 incumbents running, just four face a challenger.

Wisconsinites aren’t strangers to high-profile judicial contests. Just a year ago, in a race that featured record-shattering spending that flooded the airwaves with ads, liberal Justice Janet Protasiewicz won a 10-year term on the Wisconsin Supreme Court. The race gave liberals a 4-3 majority on the high court, garnered national attention and reshaped the state’s political landscape.

But many local judicial races largely go unnoticed. Heading into next week’s election, where a fifth of circuit court seats are on the ballot, few races have attracted much attention. Most incumbents will cruise to victory, giving them six more years of immense influence.

Wisconsinites elect their judges. But should they? Legal experts told Wisconsin Watch the answer to that question is complicated, especially when it comes to holding judges accountable for their actions on the bench.

Rise of elected judges

Judicial elections became prominent in the mid-1800s in an effort to make the judiciary more independent from the lawmakers and governors who appointed judges in the early decades of the United States, two legal experts told Wisconsin Watch. 

For the first few decades of judicial elections, most judges ran in partisan races, said Charles Geyh, a professor at Indiana University’s Maurer School of Law who has written a book about judicial selection in the United States. But around 1900 that started to change because “one of the problems with partisan elections is that party bosses control who the judges are — and the downstream consequence is that business interests are controlling parties and parties are controlling judges.”

To further insulate judges from politics, some states then turned to nonpartisan elections, though those contests were not without their flaws, Geyh said.

“One of the problems with nonpartisan elections is that the public, really without party labels, doesn’t know very much about who the judges are,” Geyh said in an interview. “They’re ignorant. They’re basing their information on name recognition.”

Today, a general lack of information about judicial candidates persists, according to Geyh and Douglas Keith, senior counsel in the Brennan Center’s Judiciary Program and founding editor of the State Court Report, a publication focused on state courts and state constitutional law. Twenty states select trial court judges via nonpartisan elections, and nine others choose them in partisan races, according to a Brennan Center report.

The low-profile nature of the judicial races — which are often uncontested — can create challenges for voters when deciding whom to elect to the bench, Keith said.

“In many states at the high court level, and especially at the lower court level, the public does not know who they are voting for,” Keith told Wisconsin Watch. “They don’t know anything about these judicial candidates.”

As a result, voting against judges is often not an effective way to hold them accountable, Keith said, “because the public does not have enough information, or enough choices, to actually hold judges accountable via elections.”

Election alternatives

The two primary alternatives to electing judges are gubernatorial appointments and a process known as merit selection.

Merit selection — sometimes referred to as the Missouri Plan — is used to select trial court judges in some form in seven states, according to the Brennan Center. The process usually involves a commission made up of lawyers and nonlawyers that nominates a list of qualified judicial candidates. The governor typically then chooses a candidate from that list and appoints the person to the bench. After an initial term, the judges face a retention election to keep their seat. 

The process was first created in 1913, Geyh said, though the exact process of how the system functions varies by state.

“The thing about judicial nominating commissions is that the devil is really in the details as to how that commission is designed,” Keith said. 

In some states, he noted, governors appoint a supermajority of the commission members while in others legislators do. In some places the state bar gets to appoint members. Keith also noted that some states require there to be a partisan balance among the commissioners and in others they require members to be drawn from different professional backgrounds.

Keith highlighted New Mexico’s merit selection process as an example that is complex but “seems to be operating really well.”

In New Mexico, the dean of the state’s largest law school chairs the commission, which has both partisan balance and professional diversity requirements. If the partisan balance of the commission is off, Keith said, they add more members to restore it.

Geyh said merit selection has run its course, noting that no state has adopted the model since 1994.

Merit selection is also not a strong source of judicial accountability because the process occurs before a judge is in office and when judges face a retention election, so many of the same problems facing other judicial elections persist, Geyh said. But there is some evidence that merit-selected judges are disciplined less and that “merit selection systems are good at removing the worst of the bunch.”

“There are serious problems with every existing system of judicial selection,” Geyh said, adding that people “need to recognize that different states may warrant different systems of selection.”

If he had to craft a judicial selection system, Geyh said, it would involve a one-time election featuring candidates who applied to run and were deemed qualified by a nominating commission. The election would involve tight campaign finance restrictions, he said. Once in office, the elected judges would have to follow stringent recusal rules and would only be able to serve a single, lengthy term.

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Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.