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Referendum Will Decide Chief Justice Selection in Wisconsin

When you vote on April 7, you’ll find two items on the ballot related to the Wisconsin Supreme Court.

The race for justice features Incumbent Ann Walsh Bradley and challenger James Daley. The second item will ask voters how the high court should select its chief justice. A change that would amend the state constitution.

For the past 126 years, Wisconsin has used a seniority-based system. The justice with the most seniority on the state Supreme Court serves as its chief justice. Now, the Republican-controlled Legislature believes it’s time for change.  GOP Rep. Samantha Kerkman insists the justices should select their leader for a two-year term.

“I think it does spur fresh ideas and makes people better. When we elect our leaders here in the Legislature, I think it’s something that should be emulated by the court. I think it really does build consensus,” Kerkman says.

The change could mean that long-time Justice Shirley Abrahamson loses her job as chief justice. Democrats, including Rep. Evan Goyke, claim the proposed amendment is nothing more than an orchestrated Republican move to oust Abrahamson. She’s viewed as part of the shrinking liberal minority on the court.

“We’re putting our name on a change to our most important document in our state government, our constitution, for this? To elect a chief justice to a two year term because we don’t like Shirley Abrahamson, because we’re upset that she’s outlasted everybody else?” Goyke asks.

The proposed change was the first bill the new Republican-controlled Legislature tackled when seated in January. It was the second consecutive session of the Legislature to pass the item, meaning all that’s required now is voters’ approval. Incumbent Justice Ann Walsh Bradley accuses the Legislature of playing politics.

“Our constitution is a sacred document. It defines who we are as a people and what we believe in as a state. And, to use it as a tool for some kind of political payback because you don’t like decisions is wrong,” Bradley says.

Bradley’s challenger in the April 7 election is Rock County Circuit Judge James Daley. He favors letting voters decide whether Wisconsin should stick with its tradition of seniority.

“We’re only one of five states that uses that system. I like democracy and I think the justices should have the right to vote for who they believe should be their chief justice,” Daley says.

In 22 states, the justices select their leader. In the others, either the governor appoints the chief justice or voters elect the person. There was another attempt in the Wisconsin Legislature to change the method the state uses in 1985. The bill didn’t go very far.

Now, with the change in the hands of voters, UW-Milwaukee Professor Mordecai Lee expects most to cast their ballots based on party affiliation. Even though the court system is officially non-partisan.

“I think it’s pretty reasonable to say that there’s lurking in the background a kind of ideological motivation and that’s for the ideological majority on the court, the conservative majority, to reflect their majority-ship by having control and designating who the chief justice is,” Lee says.

Lee predicts that in the days leading up to the election, special interest groups could spend money trying to influence the outcome of the referendum.

Marti was a reporter with WUWM from 1999 to 2021.
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