The Souter Society

Chances are I did something yesterday that you didn’t. I voted in the spring primary.

Only about one-in-ten eligible voters bothered to show up and I can’t really blame those that stayed home. There was only one race on my ballot, a quiet affair to eliminate one of three candidates for a Dane County circuit court seat.

But as I left my polling place after chatting with the lonely poll workers I couldn’t help but feel that there should have been a much more interesting choice on my ballot. There should have been a primary for the most important election this April: for an open seat on the state Supreme Court.

Instead, we’ll have the same old, same old. Two heavily partisan candidates will battle it out, one clearly a liberal Democrat and the other a conservative Republican in this sham of a nonpartisan election. And, in fact, “battling it out” is overstating the case. The liberal Democrat, Chris Taylor, will win going away. Republicans have all but conceded the race.

What we should have had — what voters deserved — was a third choice. I wanted to vote for a candidate backed by neither party and whose ideology and views on the issues I did not know. The only things that should be relevant in a Supreme Court race are judicial philosophy (strict constructionist or believer in a living constitution) and legal background and qualifications.

Instead, we’ve got the specter of Taylor taking positions on issues as if she were running for governor. I assume once her underfunded Republican opponent, Maria Lazar, starts running ads she’ll do the same on the other side.

But without the choice of an impartial jurist to vote for in April, I won’t vote for either of the partisans on offer. Instead I’m going to write in the name of the late Justice David Souter.

Souter is the kind of person I wish we could get on our Supreme Court. He was appointed in 1990 by Pres. George H.W. Bush and thought at the time to be a reliable conservative. But he was really a moderate and, over time, he even gained a reputation for being something of a liberal. Mostly, he wasn’t necessarily predictable. Rather, he was a legal scholar and he was fair minded. He let facts, reason and legal principles carry him to his decisions. He was neither a partisan nor an ideologue. He got along well with and was respected by everyone on the Court from the conservative Sandra Day O’Connor to the liberal Ruth Bader Ginsberg.

The only current justice on our state court who comes close to Souter’s example is Brian Hagedorn, a conservative who sometimes breaks with his side when he thinks the legal arguments demand it. All of the other justices are heavily partisan liberals or conservatives.

In the last two elections I’ve unhappily voted for liberals Janet Protasiewicz and Susan Crawford. My reasoning was that, with nobody like Souter to vote for, it was a choice between a liberal or conservative court majority. With that as the stark choice, I voted for the liberals. But what I really want is seven justices who offer no clues as to how they’ll come down on an issue beyond their demonstrated judicial philosophy.

This time, with the liberals now in control of the Court no matter the result, I feel free to do what I want. It’s all academic. Taylor will win by about 10 points, increasing the liberal majority to 5-2, so she doesn’t need my vote. I’d consider voting for Lazar, even though she’ll lose, if I thought she might turn out like Hagedorn. Since I know little about her, I suppose there’s an outside chance of that, but it’s not likely

So, instead I’ll cast my little protest vote for Souter. You can join me to send a message that we don’t like our choices or this system. As I argued yesterday, I think we should go to appointing Supreme Court justices. You can join me in the Souter Society. If there’s enough of us, maybe we can have coffee mugs, tee shirts and tote bags. Perhaps a secret handshake.

Yeah, I know this is a losing cause. But I refuse to be held captive to a crummy system. I’m going to make my statement, no matter how faint.