LL: The Wisconsin Supreme Court election was once an obscure local judicial race. Now since Governor Walker's legislation stripping public union bargaining rights, the stakes are higher and the money is pouring in to out seat the sitting judge and elect a union friendly candidate to overturn the legislation. Isn't this essentially buying an election?
CS: Yes, there is no better example of how to politicize a court.
Government employee unions and other liberal special interests are hoping to use the state supreme court to overturn the results of last fall's election and invalidate laws passed by the new legislature.
Since April elections typically have a small turnout, they're hoping they can overwhelm the polls to negate the elections that represented a broader range of Wisconsin voters.
LL: Is justice for sale?
CS: Democracy can be a contact sport, but policy should be decided by legislative officials - not the judiciary. This is the fundamental difference between liberal and conservative judicial philosophies. A constitutional conservative jurist does not decide a case based on policy preferences—an honest liberal jurist admits to it.
I am a strong supporter of the First Amendment, so I would never argue that these groups and campaigns don't have a right to free speech. But it certainly looks like Governor Walker's critics are trying to guarantee a result in a future case.
LL: Funding keeps on rising, civility is declining. How would you characterize judicial elections?
CS: If the tone of judicial elections is changing, it is because courts are increasingly willing to disregard their limited role and instead make policy from the bench. In a world where judges are super-legislators, the stakes are very high.
But the answer is not to threaten the peoples' right to choose their judges, it is to elect or choose judges who will enforce the rights that are in the Constitution and refuse to invent rights that aren't there. Just as in legislative or presidential elections, the electorate responds negatively to candidates they determine are playing dirty politics or hitting below the belt.
Just look at the backlash against JoAnne Kloppenburg following her refusal to disavow a third-party ad that has been labeled as false and misleading about Justice Prosser and a case he worked on as District Attorney. When a candidate plays fast and loose with the facts or with basic rules of civility, it can backfire in the polls.
LL: If Prosser loses, could this impact the Republicans chances of winning future court elections?
CS: This election is by all measures sui generis—there simply are never going to be the same factors at play again. This is the perfect storm of Wisconsin spring of 2011.
LL: How many courts are up this year for election?
CS: There were elections in South Carolina this February, and six others still to come this year, including Wisconsin.
LL: Is it a simple equation, if you out spend your candidate and saturate your message you will win or does message still hold water for voters?
CS: Money can help amplify your message, but voters still are real people with common sense who tell when a candidate or their message rings hollow, no matter how much money is behind it.
LL: What kinds of changes would we see in the business landscape if there were more liberal judges? Could businesses be driven out of the country?
CS: If liberal special interest groups are willing to bet millions of dollars on this campaign, they clearly expect a liberal judge to overturn laws that would limit union power and move the court to advance the liberal agenda, and I'm inclined to believe they think the fix is in and their money well spent.
I'm from Michigan, a state that has lost hundreds of thousands of jobs because of businesses locating elsewhere to escape crippling union-driven laws. If the same thing happened in Wisconsin, it could easily lose business to other states and foreign countries as well.
LL: Who are the deep pockets for both the Democrats and the Republicans? Is it Just Soros and the Tea Party?
CS: Dare I say that for the Democrats it is the usual suspects? The unions, trial lawyers, other liberal special interests, which generally line up against taxpayers, law enforcement, gun owners, pro-family policies, and free enterprise?
They are obviously heavily invested in promoting Kloppenburg—viewing her as their get-out-of-jail-free card when facing a legislature that is willing to stand up to them. I don't think the Tea Party has especially deep pockets—but they have a lot of them.
That helped make the difference last fall. The tea partiers won not so much because they bought ads or paid people to drum up support, but because they were on fire themselves. You can't buy that.
LL: Should there be a spending cap for these elections?
CS: I would consider that an unconstitutional First Amendment violation.
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A Senior Talent Producer at CNBC, and author of "Thriving in the New Economy:Lessons from Today's Top Business Minds."
