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In a recent op-ed in the Milwaukee Journal Sentinel, Richard S. Brown, chief judge of the Wisconsin Court of Appeals District 2, calls for a system of merit selection for Wisconsin judges. He proposes a commission be empaneled, representing various interest groups. The commission would interview candidates and, theoretically, forward to the governor the names of the three most meritorious applicants:

Certainly, the Republican Party wants a say. Fine. It gets one seat. Same for the Democrats. Wisconsin Manufacturers & Commerce wants a say? It gets a seat. MoveOn.org wants a say, too? OK, it gets a seat. Add a professor chosen by the Marquette law faculty and one chosen by the University of Wisconsin law faculty and the president and president-elect of the State Bar, and you have your judicial commission. The actual composition of the commission and the exact number of seats would be up to the Legislature after input from citizens.

Now, here’s the trick. A candidate’s name could not be forwarded to the governor unless that candidate received a super-majority of the votes - 75% or 80% of the votes of the commission. What does this do? Simply, the only way the candidate makes it out of the commission is if he or she passes muster with conservatives and liberals, Republicans and Democrats, business interests and activists, law school faculty and the bar.

In other words, he or she would be the consensus candidate that everyone, or just about everyone, agrees would be a stellar judge or justice - the “slam dunk.”

Of course, here’s the problem with that: The liberals get 75% of the seats, which means that only liberal candidates will get a super-majority. The Dems and MoveOn, to use his examples, are 2 of 8. Then the president and president-elect of the State Bar, which tends to be dominated by the trial lawyers, so we’re at 4 of 8. And the UW and Marquette Law School faculties will clearly put us at 6 of 8 for the liberals. And there’s your super-majority.

And that’s how merit selection leads to the Missouri Problem, namely, the people elect a Republican governor, and the judicial selection commission only submits lists of liberal judicial activists for him to choose from.

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