Here & Now

How Partisan Are Judicial Races?

Frederica Freyberg:
More now on the State Supreme Court with coverage on the topic by our partners at WisContext.org. Wisconsin is one of 38 states that holds elections for justices on the high court, most of those states including Wisconsin designate the position as non-partisan. UW-Green Bay Political Science Professor Aaron Weinschenk cuts through that myth in a new story for WisContext. He finds plenty of evidence of partisanship among candidates for the court. Aaron Weinschenk joins us now from Green Bay. Thanks very much for being here.

Aaron Weinschenk:
My pleasure.

Frederica Freyberg:
So in your article for WisContext, you conclude that Wisconsin is likely to continue to see incredibly partisan non-partisan elections and you have numbers to back that up. So let’s start with what you found about whether the 2019 election for Supreme Court was more or less partisan than previous elections.

Aaron Weinschenk:
Yeah, so what I did was, I thought that presidential vote patterns would be a good way of capturing the partisanship of an area. So I did some simple statistical tests and was able to see that there’s a really strong correlation between presidential vote returns and how counties vote in Supreme Court elections, like record high level this is time around and has been pretty high in the recent past. So I think that’s pretty good evidence that these things are partisan, that partisanship makes its way into the races even though partisanship isn’t on the ballot officially.

Frederica Freyberg:
You also compared the 2019 State Supreme Court election to prior State Supreme Court elections and found a trend in partisanship. What was that trend?

Aaron Weinschenk:
Yeah, in the last few elections, partisanship has played a pretty important role. It’s definitely gone up over time. In the recent past, so late ’90s, early 2000s, there was definitely a partisan component but not nearly as strong as what you see today. In fact, the earliest data point that I have, 1996, there’s hardly any connection and it sort of goes up from there. So it has been the case that partisanship has played less of a role but we’re kind of in new territory now where every single election seems to outpace the last one and partisanship seems to play an even stronger role.

Frederica Freyberg:
What was different this year compared to the election that liberal Justice Rebecca Dallet won in 2018?

Aaron Weinschenk:
Yeah, I think that one was pretty partisan. This was slightly more partisan. In this one, there was a lot of imagery regarding political candidates and officials built into the ads and reference to some of the ads had pictures of President Trump in them or Hillary Clinton or Eric Holder, so it was pretty explicit and then also outside groups that were pretty easy to identify their ideology and their partisan leaning spent a lot of money and ran a lot of ads to try to support the candidates. So that sends a pretty clear signal to voters about what people believe and what their leanings are.

Frederica Freyberg:
You say as to the hyperpartisan nature of supposedly non-partisan high court elections, Wisconsin could just go ahead and make them partisan elections. So what would that mean?

Aaron Weinschenk:
Yeah, I mean, they’re essentially partisan affairs anyway so we could just change the institution so it matches what actually happens. There are a fair number of states that do that, and they actually tend to see more engagement in those elections relative to the non-partisan places. So we could certainly think about changing the institution if we thought we weren’t really getting what we wanted out of the institution as it currently exists.

Frederica Freyberg:
So you say that, in fact, if you made them partisan elections, there’d be more engagement. Does that mean that more people would vote?

Aaron Weinschenk:
Yeah, you’d tend to see higher turnout, at least that’s what the research in political science suggests. You have to remember that a lot of these kinds of races are low salient events, and so people may not participate if they go there for other things but don’t have an easy cue on the ballot and so if you make that accessible, you make it easier for people to make choices even though they might not have done a lot of research or they don’t have a lot of background on the candidates.

Frederica Freyberg:
So there are other options than making an election for the State Supreme Court a partisan affair, and that would be like nominating commissions that select justices based on merit but you don’t think that would happen either. So we just kind of continue with the non-partisan pretext at the polls?

Aaron Weinschenk:
It’s really hard to change institutions. There’s a real bias towards the status quo and unless some people really work hard on it and raise it to a high level of attention, it’s hard to change these things that have been around for a while, but I think people are increasingly recognizing that this institution isn’t what we say it is. And so if that’s the case, then maybe we want to re-think it. Maybe we don’t want to elect judges at all. Maybe we want to put partisanship on the ballot since we know they’re becoming pretty partisan these days. So there are ways forward, for sure.

Frederica Freyberg:
And yet your expectation is that we’re not going to do any of those things?

Aaron Weinschenk:
Yeah, my expectation is that we’re not and I think that will agitate some people who really think these should be non-partisan or who think that people shouldn’t be electing judges or justices in the first place, but it’s pretty hard to convince policy makers to reform institutions, especially when they’ve been around for quite a while.

Frederica Freyberg:
Absolutely. All right. Professor Aaron Weinschenk out of UW-Green Bay, thanks for joining us.

Aaron Weinschenk:
Thank you.