The path to the White House will run squarely through the Badger State. As in years past, the election this spring for a ten-year term on the Wisconsin Supreme Court will serve as a precursor for the battle to come.
In January, the president noted as much at a rally in Milwaukee, where he urged his supporters, “Go vote for Justice Daniel Kelly to defend the rule of law!” In mid-February, incumbent Justice Dan Kelly, appointed to the high court in 2016 by former Gov. Scott Walker, advanced out of a three-way primary to face Madison Judge Jill Karofsky. The contrast between the two candidates is stark.
Proxy Battles for Large Wars
Throughout the Walker era, Wisconsin’s Supreme Court elections served as proxy battles between the union-supported special interests that held a vice-like grip on state government for decades and reform-minded conservatives attempting to break the special interest monopoly. This was epitomized in the debate over Act 10, which weakened unions by giving more power to local governments to control public employee benefits.
As the Act 10 war raged in 2011, what would have been a sleepy contest between respected incumbent Justice David Prosser and his Madison counterpart became a contest with national implications. A Prosser loss would have likely resulted in the legal defeat of Act 10, as his opponent had all but declared her opposition to Walker’s signature reform.
When a snafu in conservative Waukesha County resulted in Prosser taking a late lead, leftists howled that the election had been stolen, and a recount was initiated. Many of us spent the following weeks counting ballots in warehouses throughout Wisconsin. In the end, Prosser prevailed.
The Wisconsin Grassroots Defends Conservative Judges
While the elections in 2013 and 2015 featured relatively easy re-elections by incumbent justices, the 2016 spring election foreshadowed what lie ahead that fall. The 2016 spring contest featured another Walker appointee, Justice Rebecca Bradley.
Bradley had for years been a leader in conservative legal circles. While her winning vote margin was not as close as the 2011 contest, the race featured extremely personal attacks against Bradley. With more than 1.9 million votes cast, the Wisconsin grassroots flexed its muscle as Justice Bradley defeated another Madison opponent by five points.
2017 featured a free pass for conservative Justice Ziegler, and in 2018 conservatives failed to identify a viable option. Conservatives didn’t make the same mistake in 2019. Instead, they immediately coalesced behind the candidacy of Brian Hagedorn, a Walker appointee to the Waukesha-based District II Court of Appeals.
A former legal counsel to Walker who helped the governor navigate the legal landmines following the passage of Act 10, Hagedorn was no stranger to Wisconsin’s partisan battles. Thankfully, he leaned on this experience to deflect everything that was thrown at him during his run for Supreme Court.
Not satisfied with attacking his judicial philosophy or even his connection to the governor, Wisconsin leftists attacked Hagedorn’s family, going so far as to attack his wife for starting a Christian school. They even began attacking the families who dared send their children to the school.
Once again, the Wisconsin grassroots stood its ground and delivered a win as significant as the Walker recall win. While many historical allies abandoned Hagedorn when he dared to stand up for his personal Christian beliefs, it was the grassroots who stood alongside him.
Kelly’s Opponent Pledges Judicial Activism
This year, grassroots conservatives will once again be called upon to carry the torch of judicial independence. When I began my legal career 11 years ago at one of Milwaukee’s large business law firms, I was told I needed to introduce myself to this Dan Kelly guy. I’m glad I did. Justice Kelly is a man of integrity who has a passion for the law.
Over the next several weeks, he is going face an onslaught of personal negative attacks. With the Democratic presidential primary falling on the same day as the spring Supreme Court election, his opponent has left little doubt she will tie herself to leftist primary voters.
Since joining the race, instead of engaging with Kelly in a substantive manner, she has resorted to simply labelling him, and presumably his colleagues on the Supreme Court, as corrupt. On judicial philosophy, Karofsky hopes to be a social justice warrior. Despite acknowledging she can’t write laws, in December she told a gathering of University of Wisconsin students “we need to reform the criminal justice system in the State of Wisconsin.”
When running for the bench in 2017, she proudly proclaimed, “Anyone who knows me knows that I am not one to sit idly and silently by in the face of a social wrong. I will advocate for social justice issues and against wrongs I see in court or other procedures.”
Karofsky just doesn’t talk the lefty talk, she walks it. In March 2019, despite the wishes of a victim’s family and the leftist Dane County district attorney, Judge Karofsky couldn’t get herself to impose a life sentence on a man convicted of murdering another man, wrapping his body in a rug, and thoughtfully storing him in a rural storage garage.
Instead, Judge Karofsky lectured the victim’s family at the April sentencing hearing: “I know some of you wanted the maximum sentence in this case, and were I sitting in your seat, I would want the exact same thing, too. You don’t have to like this sentence or agree with the sentence. The reason behind my sentence is because Mr. Lieske would be 81 years old at the time that he would be eligible for extended supervision.”
Kelly Stands for the Rule of Law
Unlike his opponent, Kelly doesn’t pay lip service to the notion that as a justice he doesn’t write laws. In his opinions, he painfully lays out the framework by which statutes must be interpreted and applied, following the precedent established by then-Justice Diane Sykes in Kalal.
This also means closely guarding the prerogative of the judicial branch to say what the law is. No decision captures Kelly’s judicial philosophy better than Tetra Tech, a decision upending the doctrine of administrative deference. There, Justice Kelly explained, “Allowing an administrative agency to authoritatively interpret the law raises the possibility that our deference doctrine has allowed some part of the state’s judicial power to take up residence in the executive branch of government.”
He went on, citing to Federalist No. 47, “We must be assiduous in patrolling the borders between the branches. This is not just a practical matter of efficient and effective government. We maintain this separation because it provides structural protection against depredations on our liberties. The Framers of the United States Constitution understood that ‘[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, . . . may justly be pronounced the very definition of tyranny.’”
If that weren’t enough, he quoted the following from U.S. Supreme Court Justice Antonin Scalia: “The purpose of the separation and equilibration of powers in general was not merely to assure effective government but to preserve individual freedom.”
The contrast between Justice Kelly and his opponent could not be clearer. While his opponent hopes to bring her focus on social justice to the Supreme Court, Justice Kelly wishes to “assiduously patrol the borders between the branches.” As Milwaukee talk radio host Dan O’Donnell has explained, the race represents the simple difference between activism and principle.
As in the last decade, the Wisconsin conservative grassroots will be asked to step up in the defense of a constitutionally sound interpretation of the proper role of a justice. They also will be asked to stand athwart a likely wave of Democratic presidential primary voters and national special interests hoping to rebuild the Midwestern “blue wall” that crumbled in 2016.
If past Wisconsin Supreme Court elections serve as any guide, Justice Kelly will have a real shot at preserving the 5-2 conservative majority on the state Supreme Court while sending a clear signal of what lies ahead this fall.