 Welcome to the Donahue group. We're delighted that you can join us for another wonderful half hour of conversation with Chief Justice Shirley Abramson, who is our guest this month. Also joining me, Cal Potter, former State Senator and Superintendent of Library Services for DPI. Ken Risto, Jack of All Trades in the Sheboygan Area School District. A simple social studies teacher. A simple social studies teacher. I'm Mary Lynn Donahue. I practice law here in Sheboygan. I've been back in town for quite a while. Our guest, again, is Chief Justice Shirley Abramson, and we had a wonderful half hour talking about the court system, both in Wisconsin and the federal court system. The Chief Justice for 10 years has been on the Wisconsin Supreme Court for 30 years, and we were talking about, you've marked the 50-year graduation from law school and and it seems like yesterday. There you go, and you're really remarkable for continuing the practice of law, and you will be up for re-election. One of these years soon Supreme Court terms are 10 years. Circuit Court and Court of Appeal terms are six years, and can we make an announcement? No. Next question. What is your term up to? Term is up in 2009, so I would have to run in April of 2009. That's when the non-partisan elections are held, and my present intention is to run, but no. No pressure, no time pressure. That is a long ways off. Well, sometimes it is, and sometimes it isn't. Judges and justices in the state of Wisconsin are elected. That's certainly not the case in many states. No, but you know most of the state court judges are elected in one form or other, whether it's retention or partisan or nonpartisan, something like over 80% of all the state court judges face some kind of election. How many would be partisan? I know Illinois is a partisan system. Some are. No, I can't give you the exact number. Not as many as we often think of Illinois as being a classic example, I guess. But sometimes it's partisan, although it doesn't show that way on the ballot, but the way you get nominated may be partisan, and then you run nonpartisan, but everybody knows because of the way you're nominated. So it just, as many states as there are, many varieties of way to select judges. And I think a lot of people do not realize that a non-partisan election means that you don't run on the basis of a political party. You just run as a person, and city and county positions, school board positions are all nonpartisan races, and those are the spring elections as we call it. I call it dead of winter elections. And the federal system is, to the best of my knowledge, completely appointed the district court, the courts of appeal, and then the U.S. Supreme Court. Do you have an opinion as to which system is better? Both systems have its pluses and the minuses, and it's up to the jurisdiction to choose. Now in 1846, when we had our first state constitutional convention, that was pre-state convention, there was a long, hard debate in Wisconsin, whether to choose by appointment or by popular election. And it was the same arguments that are made today were made then. It really hasn't changed much. And it was decided in Wisconsin that judges should be elected by the people. But the decision was also made, and it's quite clear in the debates that the judges are responsible not to a political party. They're not responsible or answerable as such to the legislature or the executive. The judges are responsible and accountable for adhering to the law and interpreting the law and guaranteeing the people the rights and responsibilities under the state law and under federal law. So election does not mean that unlike partisan political people like the executive or legislators, it doesn't mean you're answerable in that sense of putting your finger up to the wind and saying, what do the people want because the judiciary says what does the constitution want? What does the state statute want? And there are criteria as to who can run. A person can't just graduate from law school and decide to run for the Supreme Court. That's right. You need to at least have five years under your belt as a licensed lawyer. The process of appointing judges, of course, is always in the limelight when the confirmation hearings are on television. And I think among us we can agree that the Alito hearings, for example, may not have been particularly edifying, may not have been all that informative, and certainly had a partisan cast to them. But coming back to Wisconsin where we elect our judges, we often talk on this show about how the political landscape has changed since Cal was in the state senate from when you started to when you left and how... More money, special interest groups, PACs. And we kind of cry out for legislative or election kinds of reform and so forth. From time to time, many judges run unopposed. Most do. Most do, particularly at the circuit court level and the court of appeals. Supreme Court justices often have challenges, and I guess because it is more... Those cases really, when they finally get up to the Supreme Court, they tend to have more import. There have been some nasty elections where lots and lots of money has gotten spent, and it seems that the dignity of talking about your qualifications for judge and so forth seemed to be damaged. What are your thoughts? Judges also need to be very careful. They cannot go out and raise money themselves, but it's good. It's very good, but they need to have people who can go out and raise money for them, and it seems tricky. Are you in favor of public financing of elections? Is there a better way that we could be doing things? We do seem to struggle along and people get elected and the system stands, but... I favor elections in Wisconsin. We have a very educated population. They are accustomed to voting for judges. I think if you took polls, much more than 50% would favor retaining a election. On the other hand, we have several problems. One, apathy. Many times less than 25% of the people vote in judicial elections in the spring, so we have to get more people interested in judicial elections and voting. Second problem we have is the issue of what can judges say. What we don't want is judges making promises as to how they shall rule on a case. That is a no-no. We want judges who are, regardless of their personal opinions on issues, are going to administer the law and interpret and apply the law in a neutral, impartial fashion. We have to be careful about trying to force judges into making promises about how they're going to rule. That's not fair. Judges shouldn't do that. The third problem we have is money. Campaigns cost money, mostly for media, TV, radio, newspaper ads. Judges in this state cannot personally raise money, and that's good. You don't want a judge putting the heat on people and saying, well, you know, give me money, and then the people say, well, we have to give the judge money because who knows what the judge will do if we don't? That's not good. We don't want that. So I do favor public financing for judicial races, but of course I don't have the power to do that. That is a legislative power. We do have public financing for Supreme Court races in Wisconsin, but it's a very limited amount. In recent elections, you'd get $35,000 from the state, which is not very much. That many television ads don't. Or radio, et cetera. So it's very hard to do. Now I have taken public financing in each of my campaigns and have abided by the rules, but as to public financing, the devil is in the details of how you administer it and how you set it up. And the legislature has worked on this, but has it managed to bring forth a bill? Well, they brought forth a bill. They haven't enacted and we've talked about the seeming paralysis in our state legislature about campaign finance reform and all sorts of things, but that's another episode. Do you have some thoughts about those first two problems? Because it seems to me that those two are, at least in my mind, intertwined. I mean, what gets lots of people out to vote is talking about these kinds of issues and having knocked down, drag out policy differences. And on the one hand, you clearly, and I couldn't agree with you more, you don't want judges saying, well, if you vote for me, I'm going to rule on this case, this case, this case, and this way. How do you engage people into wanting to get out and vote when you really can't talk about policy issues? What is it you could talk about that would get people there? And most of the issues that special interest groups want to talk about are hot button issues that don't come to the court. They're not going to come. They're legislative. If they come, we're governed by a federal case. So it's really not very significant, but you do get a lot of that. I think on the apathy issue in many states, a neutral group like the League of Women Voters or some other group put out pamphlets, and you do get that in Wisconsin too, that talk about the judges and talk about criteria and guidelines and qualifications. So that's one thing. This program is an attempt also, as I see it, to interest people in the court system. All of our outreach programs are attempts to interest people in the court system, tell them what we're doing and how it affects them. So those are techniques to be used and to remind everybody what they learn in civics about the court being neutral, impartial, non-partisan, no agenda, no ideology. Typically what types of people donate to judicial groups? I mean, is it all simply, obviously the lawyers and the various bar associations, you know, we have a governorship, you know, that WIAC is going to be involved in the Wisconsin Association of Manufacturers. A lot depends on the individual judge and where the judge has come from, maybe the city or community, maybe the judge's background. Now, in my races, and I don't know this last one in 1999, but in prior races, when I looked back, I found that the contributions might have been almost 50-50 of lawyers and non-lawyers. I've tried to get large numbers of people, and I say I have tried, I've asked the committee to try and get large numbers with small contributions, $5, get people interested in the race. It's hard on the bookkeeping, but it's very, I think, very important. So I think in one of my races, I had something like 5,000 contributors, which for a state court race is very high, but that, I think, is very important. The courts don't belong to judges. The courts don't belong to lawyers. The court belongs to all the people, whether you're there or not. And I think that's why public financing is good, and I think that is the message. And it has to be a message that's repeated. I know you who teach social science, social studies, must be able to say that you might spend at a 15 weeks, one week on the court system. It's all right, yeah. One week. And then you have to expect the students to remember that, and maybe in college it's going to be the same thing. Maybe they'll take a course, someone, on the judiciary. If not, it's going to be sandwiched in. And so we need to do more in the school system, because law is a way of teaching, reading, and writing, and analysis. Cases are fun because they tell stories about human beings who have trouble. I mean, this is drama. This is drama. And you mentioned we have teaching institutes for teachers. We put that on once a year with the state bar to teach the teachers how to teach about law. We have case of the month. We pick public information office. It picks a case. That would be of interest. Students can study up on that case. They can then read the results. They can listen to the oral argument on their computers through the website. I think we're in the classroom. One of the things I've been most feeling very good about in my classroom was kids looking at very national constitutional questions that are facing the court, and letting them do some research, and letting them see, now how would you decide this case, and why would you decide this case, and then watching the dialogue back and forth. A lot of popularity of mock trial in Sheboygan at the high school level. There's four high schools in the local county, or five or six. In February, it's always fun to go down to the county courthouse and watch the cases. And this is, what is this? It's a technique for a dramatic incident, the case, where the students learn to read, write, debate, analyze, three branches of government, and life. And when I'm a judge at the mock trial sessions, I think some of these kids are better than we are in terms of their performance and their mastery of evidence. Well, and the winners of the two top teams come and argue before the Wisconsin Supreme Court in, I think it's in March. And usually the whole court sits and devotes an afternoon to this, and the kids are amazing. They're very good. They're very good. We were very fortunate. Sheboygan Salt had a couple chances of opportunity to argue in front of you, and they were very, very impressed with how attentive you were. Sure. I think one time, I think they were a little surprised when I think one of the justices just got up and left the room for a moment for whatever reason that happens, and I think they were, they were just a little taken aback by that. And I said, you have to understand that in this kind of a situation that you have to get used to that. It's fun. Well, that happens even in oral. Exactly. It could be any number of things. It could be that. You could sit so long. You could sit so long. Human nature requires that you leave. There's an emergency telephone call. So they usually come right back, and you can hear the oral argument in the chambers if you want to, because there's a system in the capital for doing that, as well as the computers are usually on listening. So the judicial assistants might be listening, et cetera. So they don't really miss very much. I could double back just for a second. I was struck by something you said, Chief, that you said, we were talking about contributions. You said, in looking back, I found, am I hearing you say that during a campaign when you're running and people are giving you money somewhere, there must be a firewall, obviously, of some kind, or another, if I can call it that. You don't really know until after the election. You don't make it a practice of knowing those kinds of things. Money generally comes into the treasure of the campaign who documents it and then makes deposits. It's generally checks. Very rarely do you have cash. And then I will send a thank you note to everybody. And at the bottom of the thank you note, it says, if you have been a recent litigant, or you are presently a litigant, or in the near future you expect to be a litigant, please advise us so we can return the money. I do that. That's a matter of my practice. It is a good idea. And then if after the election comes, I sort of do a check for cases for a while to make sure whether somebody would have given me funds and not have realized it, because a lot of times they might have, say in teachers there will be five teachers that will represent many and they don't view it as their case, for example. But anyhow, that's what we do. And so I am, it's all open public record and it's now, I think, on the website as to contribution. So there's no excuse for me not to know, but I can't remember 5,000 people. I'd like to, talking about double back, I am intrigued by the, it's just not a very edifying process to the federal confirmation hearings for the Supreme Court. And I think since Justice or Judge Bork's nomination process, it is really blood sport. And it does not, and the justices that we get are delightfully in some respects unpredictable, so that you may confirm Justice Souter thinking that he wears black and in fact he wears white or red or blue or whatever. How do we get good justices when it is such a political process at the federal level? And even four district court judges and Court of Appeals judges, the litmus test that we talk about seems to be there and judges who, or people who have, they just seem to just talk around themselves. And it's not their fault, it's the, these really kind of silly questions from the legislators. Who are motivated by political agendas and you're someone who thinks so. Grimly so, grimly so. It's just, it's an ugly process. Can we do it a better way? Well, I think that if you look, you always have to look at history. This is not the first time in history where we've had that. Many people who turn out to be great justices got a lot of heat in the confirmation. Justice Lewis Brandeis was one, for example. And over the history in the, I think it was the 19th century, I'll get my centuries confused, many people went down to defeat in the Senate. And in more recent years, very few have gone down to defeat. Nixon had some trouble on several nominees and looking back on it, some of them rightly so. And others got caught in this partisan bickering. And we lost some good judges in that. But as a whole, I think that we've got a very good federal judiciary. And I think we have an excellent state court, a judiciary elected. And we just have to keep trying. But over the history, we're just going to have differences of opinion. And I think in a democratic society, you wear them, whether it's nominations or whether it's an elective system. So although we make mistakes, I think as a whole, the Wisconsin electorate has done a terrific job. And I think that we've gotten some very good people. And you have to have an awful lot of internal fortitude to either face the Senate or face the electorate. But I think that elections in Wisconsin are very healthy or can be very healthy. They're an opportunity to go out and talk to the people and listen. Because I think judges should be doing that all the time. But an election is a good event, too. Go ahead, Cal. I was just going to say, we were looking at some of the problems. And one of the things that I see on the modern scene is we're seeing an analysis of the role of the court that some, in my opinion, maybe my opinion, just it's true, is wrongly concluded that the courts have gotten into lawmaking. And it's not their business. That is the legislature that makes the laws. I always contend that the lawmaking is you're analyzing based on constitutional individual rights, the practices, policies, and laws of the state of Wisconsin. And that is your job. And sometimes maybe some lawmakers may not agree with your decision. But it's not because you're overstepping your bounds. They just disagree. I think you stated it perfectly. I think the court does what it's there to do. Look at the statutes. Apply them in the situation. Decide if it's unconstitutional, if we have to do that. And then you go on to the next case. And the legislature can change the laws if the legislature wants. That's the dialogue in the Democratic society. And if you don't like the case, say that. I think it's wrong because court might have done something else. Perfectly good. First amendment, repress, free speech, right. But to make personal attacks or to slur the institution as being out of step or not doing it properly or the current phrase is activist court. No one knows what that means. Polls show people don't know what it means. But you and I know what it means. It means I don't like the decision. It's very simple. Right? Very simple. And it's okay to say that. But that's what you should say. That's right. But you'll have people saying that the courts can't make the law. Well, there is the common law. There is a lack of understanding of where laws come from. They come from statutes, but they come from judges making law because that's what their job is. It's a different kind of law than the legislature makes. Exactly. And I think courts fully understand that the public policy of the state is in the legislature. Our job is if it comes to the court to apply it in that particular case, what if we have to say whether it's constitutional or not? And that's what we do. But we don't make the public policy of the state. If you don't like our interpretation or our constitutional view, we're just doing the job. Legislature can change all of that. Want a constitutional amendment? Do it. Like in the veto, they did that. So that's what we do. And I think it's been pretty good in Wisconsin about not slurring the institution. For the most part, I think people have been very responsible in saying, I don't like the decision we think you earned. We're going to change it rather than personal attacks. And what's kind of sad is sometimes what happens in another state today is a wave that some people try to ride. I don't want to get into specifics, but there's a constitutional amendment coming up this fall that people use the experience in Massachusetts to say, well, we need a constitutional amendment in Wisconsin because we don't want to have the acts that judges or courts that they have over here. And this international or national coverage of court cases today has sometimes brought agendas that get into, again, misaligning what the courts really are supposed to be doing. That's true because we are a nation and the media is national. And indeed, we're global. So what happens anywhere in the world has an effect on all of us. I think that's very true. I think that in some respects, the law lawyers, judges come out much better than lawyers do. But I think there's misrepresentation or misunderstanding of what the legal system is supposed to do. And I do personal injury work, so I am opposed to what's called tort reform because I think, as you say, that our judicial system really is meets and addresses the needs of litigants who have complex issues that have to be resolved and the explosion of litigation. A so happy society, another one of the stereotyped square hands. And I just think that those things aren't true. We have a well-ordered system, both at the state and the federal level, that address our needs. We could have more judges. We could have more lawyers. There could be more resources put into the system. But I do think overall it functions well. Studies by the University of Wisconsin, which is a leader in these studies, show that if you figure out the population and the commerce, we have less litigation now than we had in the 19th century. The people are not as litigious as they were. And if you look back at some of the 19th century cases, they were fighting about 25 dollars, literally 25 bucks, in the court system all the way up to the Wisconsin Supreme Court. And we're not a so happy country. There are many countries that have much more litigation than the United States. And although many times what look like frivolous cases are reported, what isn't reported is that they're thrown out of court. And anybody can sue anybody. I agree with that. Just put down your money and you file a paper. You are in court. But just as quickly, you're going to be out of court. And we have to stop. We could talk forever. Chief, thank you so much for joining us. We've really enjoyed it.