Two years ago, Milwaukee County Judge Joe Donald was struggling to stand out in a three-way primary in the race for a seat on the Wisconsin Supreme Court.
Running against a conservative and a liberal, Donald crafted a campaign as the race’s independent candidate. But he only ended up with 12 percent of the vote. The other two candidates — Supreme Court appointee Rebecca Bradley and State Appeals Court Judge JoAnne Kloppenburg — finished the race in the nonpartisan election arguing they were the less political pick for a seat on the state’s highest court.
“One question voters always asked was, ‘So, what are you?’ And if you say, ‘Well, I’m nonpartisan,’ you get a blank stare,” Donald said in an interview.
Some judicial experts and observers say Donald’s loss in the 2016 primary is one signal of the difficulty Supreme Court candidates increasingly have in running without deep ties to politics. And they point to this year’s race as further evidence, with candidates who are more willing than ever to tell voters about their political views and policy preferences. Notably, liberals are now backing the notion that court candidates should discuss political views — after criticizing conservatives for doing so in recent elections.
Though Supreme Court races are officially nonpartisan, spending from outside groups tied to ideological interests and help from political parties has injected partisanship into the elections.
Charles Franklin, director of the Marquette Law School Poll, said the tone of this year’s race is different than those in the past but a shift in the making.
“Tim Burns has been very up front about talking about issues that matter in language of politics rather than avoiding any discussion of issues and cases which has been the sort of norm for judicial elections,” he said. “We have seen political parties encroach more overtly over recent years with party fundraisers and endorsements and other clear signs of support and shared resources. There has been a movement in this direction for a while but this year does seem seems to be overt.”
Madison attorney Burns jumped in the race last spring and is campaigning on his liberal political views. Fellow liberal-leaning candidate Milwaukee County Judge Rebecca Dallet began the race objecting to Burns’ political speech but has since shared some of her own views on policies and Supreme Court decisions. Both candidates, for example, recently said last week on a Madison radio show that they thought the high court was wrong to uphold Gov. Scott Walker’s collective bargaining measure known as Act 10.
Meanwhile, Sauk County Judge Michael Screnock, the race’s conservative-leaning candidate, often says he would apply the law as it is written and not in a way that would provide the result he personally prefers, a judicial philosophy that is in line with the conservative-leaning justices on the court.
But he also uses the “#wiright” hashtag on campaign-related tweets to appeal to Republicans and in a recent interview said he thought the Supreme Court correctly decided the Act 10 case.
Fairy tale or reality?
Liberals say the tack on the part of Burns especially, who has been the most politically outspoken, is an effort to beat conservatives who have easily been able to convey to voters which candidate they prefer through heavy spending by conservative organizations and campaign help from the state Republican Party. Conservatives say the approach is inappropriate for prospective justices to make comments that could indicate biases in potential cases before the courts.
“The Republicans have run this race many times,” Scot Ross, executive director of liberal advocacy group One Wisconsin Now, which conducts opposition research on conservative-leaning Supreme Court candidates. “What happens is the conservative (candidate) always hides what their ideology is and then the Republican Party uses their entire machine to turn out (votes).”
Supreme Court Justice Rebecca Bradley, who was backed by conservatives and won in 2016 after being heavily criticized by Ross’ group, said Burns’ and Dallet’s statements on political views, policies or matters that could go before the court could require them to recuse from cases if they are seated.
“I think it’s completely inappropriate,” she said. “I hope they backtrack from this course because if they continue on it they are going to continue to get more and more questions about issues that are going to come before the court and they are incapacitating themselves.”
Burns says his approach is a matter of being honest with voters. He said it’s a “fairy tale” to believe the Supreme Court is a nonpartisan institution.
“Be brave,” Burns said in an interview. “Say what you are and let the voters decide.”
Meanwhile, Dallet, a longtime judge and former prosecutor, said in an interview she believes voters care most about “the combination of values and experience.”
“Our rights are under attack every day ... we have a Supreme Court that’s broken and we need someone with the values and experience to stand up and repair it,” she said.
Screnock said in an interview it’s “a good thing for the voters to hear both of my opponents now are running on their policy preferences.”
“It tells their voters their policy preferences matter and I just don’t think their policy preferences or mine really have any role in this campaign,” he said. “The role of the court is to interpret the law and to apply the laws but it is not the role of court to make the law.”
But Ross said Screnock isn’t hiding his political views — pointing to the Twitter hashtag and a photo posted in 2012 on his Facebook page of Walker’s campaign logo.
Judicial observers and experts say the candidates’ campaign strategies acknowledge the reality of the dynamic of Supreme Court races rather than pretend politics aren’t involved. But they also say the long-term effect could affect the court’s legitimacy in voters’ minds.
“The growing politicization of judicial races is a concern,” said Alicia Bannon, senior counsel for the liberal Brennan Center for Justice at the New York University Law School, which opposes the encroachment of politics and special interest spending on judicial elections. “You don’t want judges to be too closely tied to the rough and tumble of ordinary politics. That can make it harder for judges to play the role they’re supposed to play under the Constitution, which is supposed to put politics aside when deciding cases.”
Ryan Owens, a UW-Madison Law School professor who specializes in judicial issues and is a member of the conservative-leaning Federalist Society, said the U.S. Supreme Court in 2002 decided it was permissible for judicial candidates to make their positions known.
“The data are unclear on the ramifications of that — whether it leads to more or less trust in the institution,” he said.
Franklin said the increased political rhetoric could increase turnout because it provides a cue to voters about the background and values of each candidate. If voters get to pick Supreme Court justices it makes sense for voters to know what the candidates think, he added.
“What we don’t know is how voters will react to this kind of overt political rhetoric in the judicial election,” he said. “There is certainly a case to be made that the old model of avoiding any comment on a pending case, a possible future case and in many situations refusing to comment on past decisions has irritated voters because they are frustrated at not knowing what each candidate stands for. But the flip side is we’ve never seen a purely overt statement of political beliefs by judicial candidates and we don’t have an example of whether that will work well or poorly for the candidates.”
He said generally, Supreme Court races are only slightly less partisan than presidential races. Those divisions made it difficult for Donald, he said.
“I thought it was better to (run as) what I wanted to be — a judge. But it’s really hard. It’s a primary. If you don’t make it through a primary, it doesn’t matter what kind of candidate you were, so I can understand why there is a little bit more leaning toward a partisan spectrum,” Donald said. “It’s unfortunate but you don’t measure necessarily the quality of the candidates but how did the candidate do.”
“I thought it was better to (run as) what I wanted to be — a judge. But it’s really hard. It’s a primary. If you don’t make it through a primary, it doesn’t matter what kind of candidate you were.” Joe Donald, Milwaukee County judge who ran a distant third
in the 2016 state Supreme Court primary