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Rittenhouse Case Puts Spotlight on the Election of Judges

Voters tend to pay little attention to the elections that put most state judges into office.
November 22, 2021
Rittenhouse Case Puts Spotlight on the Election of Judges
Judge Bruce E. Schroeder explains the process for jury selection at the Kenosha County Courthouse as jury selection in the trial of Kyle Rittenhouse begins on November 01, 2021 in Kenosha, Wisconsin. Rittenhouse shot three demonstrators, killing two of them, during a night of unrest that erupted in Kenosha after a police officer shot Jacob Blake seven times in the back while police attempted to arrest him in August 2020. Rittenhouse, from Antioch, Illinois, was 17 at the time of the shooting and armed with an assault rifle. He faces counts of felony homicide and felony attempted homicide. (Photo by Sean Krajacic-Pool/Getty Images)

The country is reeling over Friday’s acquittal by a Wisconsin jury of Kyle Rittenhouse on various murder-related charges, with folks on the right heralding him as a hero and those on the left decrying the verdict as a green light for increased active-shooter vigilantism. But the antics of Judge Bruce Schroeder laid bare another yawning issue with our country’s criminal justice system: that the vast majority of the approximately 30,000 state judges in the United States—responsible for handling most of the 100 million new state cases each year—are elected, and therefore have qualifications and incentives vastly different from those of judges whose professional futures don’t hinge on politics.

The blame for the Rittenhouse verdict thus lies not only with the jury, which did its assigned job, but at the feet of eligible voters who care about racial and criminal justice but don’t bother to vote in an informed way. To decry criminal injustice but not vote or run for office is misguided, to say the least.

Many jobs as judges, prosecutors, and sheriffs are up for grabs each election cycle. (Not to mention legislators who might use their authority to alter the laws of self-defense and open carry in the first place.) Judge Schroeder, at 75 years of age, is the longest-serving trial judge in Wisconsin. He was first appointed to the position in 1983—in Wisconsin, as in many states, judicial vacancies due to retirements or deaths are filled by appointment—and has won all seven of his subsequent campaigns to be returned to the bench. In the April 2020 election he ran unopposed and garnered 98.7 percent of the vote. Nearly as many people in Kenosha County voted for Schroeder as voted in that day’s primaries for Joe Biden and Donald Trump combined.

Rittenhouse shot and killed two unarmed people in Kenosha, Wisconsin during August 2020 demonstrations over the police shooting of Jacob Blake, a black man wanted by police on several charges, which left Blake paralyzed. During the subsequent protests, the 17-year-old Rittenhouse shot and killed Joseph Rosenbaum, who is seen on video chasing Rittenhouse and tossing a plastic bag filled with toiletries at him, and Anthony Huber, who was “armed” with a skateboard. Rittenhouse went to trial on five criminal charges relating to homicide and reckless endangerment. Although Rittenhouse wielded an AR-15 without a permit, the judge tossed out an unlawful weapons possession charge against him, as well as a violation of curfew charge.

One salient problem in the case from a legal perspective involves the disconnect between self-defense and open carry laws in Wisconsin. (Dominick Black, the friend who purchased the gun for Rittenhouse because he was too young to buy it, still faces criminal charges.) Rittenhouse argued, with apparent success, that the two victims reached for his semiautomatic rifle, causing him to act in self-defense by fatally using the very same semiautomatic rifle on them.

As George Washington University Law School Professor Cynthia Lee explained in Politico, Judge Schroeder’s decision to strike the weapons and curfew charges could have had a meaningful effect on the outcome because Wisconsin law’s “limitation on self-defense comes into play only if the defendant engaged in ‘unlawful conduct of a type likely to provoke others to attack.’” If the AR-15 was not unlawful, self-defense became more legally palatable to the jury.

But making such rulings is what judges are for.

Schroeder had a reputation for being “no-nonsense” but “approachable,” a storyteller who “focuses a lot on lunch.” During the Rittenhouse trial, however, Schroeder exhibited a range of oddities disturbing to court watchers, including:

  • refusing to allow the use of the word “victim” (instead authorizing more inflammatory terms like “arsonist,” “rioter,” and “looter” regarding Rosenbaum and Huber if the evidence supported it);
  • allowing the jury to hear the song “God Bless the U.S.A.” by Lee Greenwood, which has become a GOP anthem during the Trump years, on his cell phone ring tone;
  • screaming at the prosecutor over apparent misconduct, albeit outside the presence of the jury;
  • asking if anyone in the courtroom was a veteran on Veterans Day, then asking everyone to give a defense expert witness a round of applause for his service in the military;
  • confusedly questioning the reliability of drone video evidence based on his understanding of the “pinch-to-zoom” feature on his cell phone (and doing an awkward and embarrassing demo with his phone to illustrate);
  • ad-libbing additions to the otherwise confusing written jury instructions, and allowing jurors to take the written version home; and

For practicing courtroom lawyers, such idiosyncrasies are hardly unique to Judge Schroeder. Nor are they unique to elected judges: federal judges—who are nominated by the president and confirmed by the Senate, and who serve for life absent impeachment for misconduct—can be similarly capricious. But most people don’t see this side of the judicial system.

The selection of state and local judges varies significantly by state, but scholars explain that, across the board, elected judges “face strong reelection incentives,” including fundraising pressures. By contrast, appointed judges tend to be selected with “homogeneous preferences” that reflect the diversity of the populace. This stands to reason: Elected judges must worry about how voters will perceive their rulings else they lose their jobs. The sober judicial role of calling balls and strikes based solely on the facts and the law is distorted by political bias and professional longevity.

The removal of a state-level judge is also extremely rare—so elections matter.

Schroeder’s performance came as a surprise to many, especially after the relatively impressive competence and professionalism of the Hennepin County Judge Peter Cahill, who also serves in an elected position, in the Minneapolis trial of Derek Chauvin for the murder of George Floyd, which ended in a conviction.

It’s impossible to know whether Schroeder’s behavior affected the jury’s findings about the case; because Rittenhouse was acquitted, there’s no basis for appeal, so the trial record is not subject to appellate review. Yet perhaps a silver lining in the Rittenhouse matter is that some Americans will wake up even more brightly to the urgency of voting in America—and realize that virtually any and every troubling issue traces back to the ballot box right now, including criminal justice.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.