Conversion Therapy Ruling More Evidence for Appointed Courts

Chris Taylor will be the next Wisconsin Supreme Court justice. The political stars just align that way. But she won’t do it with my vote. Nor will I vote for the conservative on offer, Maria Lazar.

The system isn’t giving me a choice I want. I want to vote for a respected lawyer or judge, one found to be qualified by the state Bar Association and one who can provide testimonials to their fairness, judicial temperament and knowledge of the law provided by those who practice with or before them. I want to have no clue whatsoever as to how that candidate might come down on abortion or Act 10 or any other issue that might come before the court.

Instead, I’ve got a choice between two candidates endorsed by one party or the other and supported by the trailing flotsam of interest groups that follow them. The candidates all but come out and tell me exactly how they’ll vote on hot button issues.

A pox on both those houses. I’m going to write in David Souter, the moderate and modest late SCOTUS justice who wasn’t easy to predict on any given issue. This will be my small — and admittedly ineffectual — protest against my choices.

In fact, I don’t want this choice at all. Justices should not be selected through elections because the office just doesn’t lend itself to electoral politics. According to a recent Marquette poll, the vast majority of voters want to know where Supreme Court candidates stand on specific issues. That’s because the public doesn’t understand the role of the courts. Especially in these awful polarized times, the public can’t distinguish between a gubernatorial or legislative candidate — candidates for offices that make policy — and judicial candidates who aren’t supposed to make any policies. Voters want to know who’s with them in their tribe. But justices shouldn’t have tribes.

That’s why Wisconsin should join the majority of states and the federal government in appointing justices to its top court.

That’s not a perfect system either (see Alito, Samual), but the other day the U.S. Supreme Court notched some more evidence on behalf of my argument. Two liberal justices — Elena Kagan and Sonia Sotomayor — joined the conservatives in striking down a Colorado law that banned “conversion therapy.” Conversion therapy is talk therapy aimed at treating gender dysphoria. It has become a hot potato because transgender activists don’t see gender dysphoria as a condition to be treated but rather as an identity to be celebrated.

I’m not sure what it is. But it’s always been pretty clear that talk therapy that seeks to align a person’s head with their physical gender is a form of speech protected by the First Amendment, whether it’s wrong-headed or not. You would expect conservatives to look at it that way because they’re generally skeptical of the whole transgender movement.

But this stuff is sacred among liberals. It’s absolute religion on the left that once a kid decides he’s a she then so she is, and anybody who says otherwise is a horrible bigot. And that even — maybe especially — applies to parents who should know their kid better than anyone. Rush to surgery to change the child’s gender forever? That’s a right! Get the kid some talk therapy to see how real this thing is? That’s child abuse and should be illegal! Parents shouldn’t even have that option.

So for liberals such as Kegan and Sotomayor to see the obvious and overriding free speech issue (liberals used to care a lot about free speech) as trumping gender ideology is just something that elected liberals could never do. These liberal justices can do it because they were appointed for life. They can ignore their tribe when they conclude that their tribe is wrong about the law.

Of course it doesn’t always happen this way. But you can find more examples of liberals breaking with their own side’s policy orthodoxy and conservatives doing the same on the appointed U.S. Supreme Court than you can on the elected Wisconsin court.

Kegan’s and Sotomayor’s votes on this issue are the latest in growing evidence that appointing high courts is the better way to go.

And one final note. This case is another example of the sad fall of the ACLU. I was once a proud member of the group that once fought for the First Amendment, no matter the case. But the ACLU has been taken over by hard-left identity politics ideologues and so it wasn’t on the side of free speech here, even in a case where two liberal justices saw it so clearly. The ACLU once stood for the principle of free speech, regardless of who didn’t like it. Now it has become just another hack hard-left interest group. Pathetic.