It's a straightforward question, albeit a bit tongue-in-cheek: 'Are you now or have you ever been a member of the Republican Party?'
Annette Ziegler gives a less-than-straightforward answer: 'I made a $50 contribution to the Republican Party over a decade ago. I thought that made me a member. But I understand that it actually does not.'
In her 1997 application to Gov. Tommy Thompson for an open judgeship in Washington County, Ziegler touted her GOP credentials. 'I am a member of the Republican Party of Wisconsin,' she wrote. 'I have contributed monetarily to several campaigns.'
But Ziegler, who got that job and is now running for state Supreme Court, says it was all a misunderstanding: 'I've never been a member of the Republican Party.'
Next to Ziegler, nodding in agreement, is campaign manager Mark Graul, who ran GOP Rep. Mark Green's gubernatorial bid after serving as his chief of staff. The interview is at the downtown Madison office of Persuasion Partners, a consulting firm led by Darrin Schmitz, former head of the Wisconsin Republican Party and Bush-Cheney's 2000 Wisconsin campaign. On the wall, a huge banner for one of Thompson's past campaigns provides an ironic backdrop as Ziegler continues to protest her political innocence.
'There's almost nothing that would indicate a partisan preference for me at all ' other than that I've worked with a lot of people who are Democrats.' In fact, she says Gov. Thompson, during their interview, teased her, 'You work with some pretty liberal Democrats.' Her reply, recalled with a laugh: 'Yes, what's your point?'
Madison attorney Linda Clifford, Ziegler's rival in a race that will shape the court's ideological balance for years to come, is equally reticent to admit partisan leanings.
'I'm not running for the Legislature, or to advance a personal or political agenda,' Clifford says. 'I've made clear my impartiality and my commitment not to prejudge cases.'
Her views on reproductive choice? Irrelevant. 'Roe v. Wade is the law of the land,' she says. '[What I believe] personally really has nothing to do with my job as a justice.' Her past opposition to the state constitutional amendment to ban gay marriage or anything 'substantially similar,' which the state Supreme Court will be called on to clarify?
'It doesn't matter anymore,' says Clifford. 'The voters decided it was a good idea to pass that amendment, and now it's the law of the land. As a justice, that's the constitutional provision we will apply.'
Both Ziegler and Clifford are impressive candidates, and both seem sincere when they vow to approach cases with an open mind. Moreover, the degree to which ideology shapes judicial rulings is often overstated. Of the 80 cases decided by the state Supreme Court last session, 42 were unanimous.
But political leanings instruct judicial perspectives, and alignments do form along ideological lines. That's why this Supreme Court race is so important ' why it will be the most expensive in Wisconsin history and likely among the hardest fought.
With conservative Justice Jon Wilcox retiring, the court will be evenly divided, with three on the left (Shirley Abrahamson, Ann Walsh Bradley and Louis Butler) and three on the right (David Prosser, Patrick Crooks and Pat Roggensack).
This chance to gain the upper hand on ideological divides may prompt unprecedented special-interest involvement and unparalleled nastiness. And while the candidates profess to be above the partisan fray, hardly anyone believes them ' least of all their most fervent supporters.
Indeed, it is a race whose extreme cost and ugliness may provide the kick Wisconsin needs to reconsider how it picks justices for its highest court.
A liberal activist majority?
Wisconsin's Supreme Court oversees the state court system and the disciplinary apparatus for state attorneys. Its seven justices, elected to 10-year terms, accept about 90 cases a year for review and, just as important, seal fates in the hundreds of cases they decline. More than two-thirds of the cases concern civil law, as opposed to criminal.
The court's role was cast into sharp relief by three 2005 rulings that expanded the liability rights of injured parties.
One ruling, involving the fatal crane accident at Milwaukee's Miller Park, loosened the standard for punitive damages. Another struck down the state's $350,000 cap on economic damages for medical malpractice. A third allowed an allegedly poisoned lad to sue lead-paint manufacturers without proving they were specifically to blame.
Wisconsin Manufacturers & Commerce (WMC), the big-business lobby, howled with indignation, running ads warning that personal injury lawyers 'are racing to Wisconsin' to take advantage of these rulings. Spokesman Jim Pugh predicted Wisconsin 'would be flooded with frivolous lawsuits.'
A national Republican group threatened to spend $2 million to help defeat the usually conservative Justice Crooks, who aligned with court liberals on each of the rulings. As it happened, Crooks was reelected without opposition but WMC now counts him among the court's 'activist majority.'
In the current race, WMC is backing Ziegler, producing a slick brochure that approvingly cites her pledge to 'act with restraint' and 'not legislate from the bench' ' code to conservatives for 'I'm one of you.' Clifford is called a 'liberal activist' who's shown 'a willingness to set aside laws...based on her personal beliefs.'
Ziegler declines to discuss these liability cases, saying, 'I'm not going to go into criticizing our state Supreme Court and their decisions and play the Monday morning quarterback on them.' It's a non-answer that's perhaps unintentionally revealing: Why would commenting on the majority's rulings in these cases be 'criticizing'?
Clifford is more forthcoming. While stressing that she isn't sure how she would have voted, she has 'no problem with the conclusion' in the Miller Park case and agrees with the decision to strike down the state's economic-damages cap for medical malpractice.
'Three hundred and fifty thousand dollars is an insufficient amount in this day and age,' says Clifford, whose husband, Keith, is a medical malpractice lawyer. 'Whether the cap was categorically unconstitutional or arbitrarily too low, I think the result was correct.' (The Legislature subsequently raised the cap to $750,000.)
Clifford is more ambivalent about the lead-paint ruling, which her own law firm said 'could dramatically expand liability for manufacturers,' putting Wisconsin 'decidedly out of step with the rest of the country.' Here she sticks to saying, 'I don't know where I would have come down on that case.'
WMC, however, purports to know exactly what Clifford would have done, saying her judicial philosophy matches rulings that have created a 'litigation windfall for the plaintiff's bar.' (WMC also knows how she'll rule on gay-marriage cases: 'Clifford's decision to invalidate the amendment is virtually certain.')
According to Pugh, Clifford 'has expressed an activist ideology that would allow the court to set aside duly enacted law,' while Ziegler 'articulates a judicial philosophy that's completely contrary to the positions the court has taken in the last several years.'
WMC's apocalyptic predictions aside, there's been no discernable flood of medical malpractice or punitive-damage claims. Pugh maintains (but failed to document) that the legal theory advanced in the lead-paint case has been invoked in subsequent state lawsuits involving asbestos and petroleum. Even here, though, there's no sign of major impact.
Pugh nonetheless feels Wisconsin's appeal to employers has been diminished. He notes that the state last year ranked 23rd in a national poll assessing 'legal climate,' down from 10th in 2004. CEOs pay attention to such rankings (and possibly also to WMC's ceaseless efforts to portray Wisconsin as an awful place to do business), although the consequence is hard to quantify. 'It's like fishing,' says Pugh. 'You don't know the ones that got away.'
Policing injustice
Another critical function of the state Supreme Court is adjusting the balance between the rights of the accused and society's right to protection from criminals.
This was a main theme of failed Supreme Court candidate Joe Sommers, a local attorney who lamented the convictions of innocent people, some of whom he's gotten or kept out of prison. Sommers garnered 16% of the primary vote, well short of Ziegler's 57% and Clifford's lackluster 27%, but not bad for a candidate lacking big bucks or special-interest backing.
Asked what the Supreme Court can do to prevent wrongful convictions, Ziegler draws a blank: 'I don't know the answer.'
One major thing the court has done was in a 2005 case, State v. Jerrell, decided on a 4-3 split, with Justice Crooks again joining the court's liberals. Here the court disallowed a minor's coercively obtained confession and decreed that, henceforth, interrogations of juveniles could not be used as evidence unless they were recorded.
This case has been cited as an example of 'legislating from the bench,' in that the court mimicked the function of the Legislature in creating policy. Ziegler signals her discomfort, saying the court had 'no ability to fund' this mandate, which created logistical problems for police.
Clifford notes that the Jerrell decision initially met 'with a lot of resistance' but feels things turned out all right in the end. The Legislature approved money for video equipment and expanded the court's mandate to adult felony interrogations. And Clifford says law enforcement officials she's talked to are pleased with the new deal, believing videotaped confessions will lead to more convictions.
But should the Supreme Court really be telling police how to do their job? Absolutely, says Clifford, who also thinks the court has a role to play in improving standards for eyewitness identifications, and raising pay and expanding eligibility for public defenders.
'Law enforcement and justice are intertwined, and the Supreme Court does supervise the justice system,' she says. 'And when the court sees the potential for deprivations of due process [or] for government to intimidate, it's certainly authorized to step in and make improvements.'
Here comes the mud
So there are genuine points of distinction between the two candidates ' but none as extreme as the divide between their ideologically driven supporters. And certainly, neither of these thoughtful, pleasant women deserves the firestorm of accusation they'll have to endure, in what Mike McCabe of Wisconsin Democracy Campaign predicts will be 'the nastiest Supreme Court race we've ever had in Wisconsin.'
Already, Clifford is being painted as a tool of trial lawyers, who are prominent backers of her campaign. She says it's no surprise that lawyers take an interest in the Supreme Court race and that her support from this quarter spiked following an attack mailing put out by Ziegler's campaign.
This mailing, a fund-raising letter by former Republican Lt. Gov. Margaret Farrow, recklessly asserted that the state Supreme Court has 'become an activist arm of liberal special-interest groups like trial lawyers.' (Ziegler says that, in retrospect, Farrow's letter probably should not have gone out on campaign letterhead.)
Clifford is also being derided as unqualified, lacking Ziegler's experience with criminal law or as a judge. She replies that neither is 'a prerequisite to being a good, even an excellent, justice.' Chief Justice Abrahamson, regarded even by her enemies as brilliant, had no prior judicial experience; neither did former chiefs Nathan Heffernan and Roland Day, both of whom back Clifford.
Besides, the court is already well-represented in this area, with five current justices having once had 'Judge' before their names. Clifford says it's best to have justices 'from a variety of personal and professional backgrounds' and that she brings something it currently lacks: 'The perspective of a seasoned, longtime practitioner.'
While no current justice, or Ziegler, has had a client in at least a decade, Clifford has for 32 years represented 'real people in a variety of substantive areas.' (Ziegler, meanwhile, boasts of handling recent kinds of cases, like sex-predator commitments, the court's former judges haven't.)
But the sharpest attacks Clifford faces peg her as a liberal activist, if not a dangerous radical. Witness this say-no-more putdown from WMC: 'She has handled at least one immigration case with the American Civil Liberties Union.'
It will surprise no one if WMC, which reportedly spent $2.5 million to help elect Attorney General J.B. Van Hollen last fall, makes a major investment in the Supreme Court race. Already, a national right-wing group called Club for Growth has run ads to help leverage a Ziegler win.
Clifford is appalled that 'special-interest groups from outside Wisconsin are trying to influence the outcome of a Wisconsin election.' She's called on Ziegler to ask the Club for Growth to cease and desist.
Ziegler has not done so but says, 'I wish this could just be a race where people could hear my message, hear my opponent's message, and make a determination based on qualifications. I wish everyone else would stay out of it.' But, practically and ethically, what other groups do 'is completely out of my control.'
How ugly will it get?
Both candidates promise to run campaigns focused on experience and qualifications, but leave the door open for other kinds of messages. Says Clifford, 'I think it's fair to compare our records. It's fair to point out what may be deficiencies, examples of poor judgment, inconsistencies. I don't think that's negative campaigning.'
Clifford fans have been quick to strike, even pouncing on Web site photos showing Ziegler, via photo editing, posed against multiple backgrounds. Bloviated one blogger, 'If you can't even trust this woman to tell the truth about what courthouse she's standing in front of, you shouldn't trust a whole lot that comes out of her mouth on the campaign trail.' (Ziegler's campaign blamed an unnamed volunteer.)
Others have suggested Ziegler's 1997 judicial appointment was bought and paid for, since members of her family gave $13,000 to Gov. Thompson around this time. 'I didn't give any money to Gov. Thompson,' protests Ziegler, who made the cut from a larger list of applicants before the governor got involved. (By the way, Clifford and her husband have given generously to candidates, including Ann Walsh Bradley, Chuck Chvala and Jim Doyle.)
Ziegler has also been faulted for conflicts of interest. She's presided over dozens of civil cases involving West Bend Bank without informing the other parties that her husband is a paid member of the bank's board. Such notice is apparently required under Supreme Court rules.
But perhaps the heaviest artillery likely to be launched against Ziegler accuses this hardcore conservative of being soft on pedophiles.
One case, concluded in 1999, involved a 43-year-old Washington County man who molested his stepdaughter for years. According to the criminal complaint, the man would insert his finger into and sometimes lick her vagina, at one point explaining, 'Your mother hasn't given me any sex for three months and I'm lonely.' The prosecutor wanted 20 to 30 years; even the man's defense attorney suggested five to seven. Judge Ziegler shocked everyone by giving him probation, with a year in jail on work release.
And in 1998, Ziegler sentenced a 72-year-old Kewaskum man who repeatedly assaulted a teenage boy to 12 years of probation, in-patient treatment and no jail time. The man allegedly had sexual contact and fellatio with the boy more than 100 times, beginning just after he turned 13.
Clifford has alleged that Ziegler has been derelict in her duty to punish and protect. Ziegler says it's unfair to focus on a couple of cases out of thousands she's handled, adding that defense attorneys in sex-crime cases often seek judicial substitution: 'They'd rather have anybody but me.'
In 2000, Ziegler sentenced a repeat sex offender who earlier had received a light sentence from another judge to 40 years behind bars. Last fall, she locked up another molester for 80 years, heeding his victim's recommendation that he get one decade in prison for every year of abuse.
'A number of people accuse me of being unduly harsh,' says Ziegler. She pauses, then delivers the coup de grÃce: 'I'm curious as to how my opponent's sentences compare.'
A perfect storm
Regardless of the role played by special interests, the Clifford/Ziegler race will be enormously expensive, with saturation TV ads, mass mailings and phone-bank calls.
Both candidates are well-off. Ziegler's ethics disclosure lists 37 separate investments, each worth more than $50,000, and another 180 worth between $5,000 and $50,000, not including real estate holdings. Clifford's assets are more modest, but clearly put her over the $1 million mark.
To date, both candidates have loaned $150,000 to their own campaigns, and Ziegler predicts this is only the beginning: 'I do think that I'll probably invest in this what I will earn after taxes in the next decade.' (The position of Supreme Court justice currently pays $137,414 a year.) Her spin on this, offered with a laugh: 'I will be working truly as a public servant for at least 10 years.'
Each candidate expects to spend more than $1 million. Both say that's a shame, but necessary, given the need to run TV ads and counter the influence of outside groups.
McCabe, of Wisconsin Democracy Campaign, says the state is actually 'a little bit behind the curve in terms of the arms race in judicial races.' The last two Supreme Court races, in 2000 and 2003, were relatively modest affairs, with total candidate spending of just $434,912 and $715,416, respectively.
'You have to go all the way back to 1999,' he says, 'to find the race that set the record.' That was when Abrahamson spent $727,528 to beat back a challenger who spent $634,384.
Other states have long surpassed Wisconsin in this arena. In 2004, two supreme court rivals in Illinois together raised an eye-popping $9.3 million. And in Georgia last year, a single industry group spent $1.3 million trying, without success, to oust an incumbent justice.
Justice at Stake, a Washington, D.C.-based group that watchdogs the judiciary, says that over the last several years, 'A perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special-interest politics is descending on a growing number of supreme court campaigns.' The group sees this as a threat to the courts' 'fairness, impartiality and independence.'
Recently, Justice at Stake decried early signs of 'partisan mudslinging' in Wisconsin's Supreme Court race, warning that this 'could signal a new era of nasty and costly judicial contests.'
Opportunities for reform
Q: Why are high-spending candidates and special interests taking over the state's judicial elections? A: Because they can.
Wisconsin is one of just 22 states with an elected judiciary. In another 16 states, judges are appointed, but voters get to decide whether they should be retained. In the remaining 12 states, judges are picked by governors or legislatures, and voters have no direct say in the process.
The surest way to avoid what's happening in Wisconsin, with buckets of money being thrown at TV ads, is to stop letting voters decide judicial races. McCabe thinks the idea is worth considering: While he'd prefer to let voters decide, he says most judicial campaigns are so lacking in substance it hardly matters.
'They don't say anything about where they stand or how they would likely vote,' he grumbles. 'We're supposed to have blind justice. Instead, we have blind voters.'
But picking judges based on merit rather than popular vote means changing the state's constitution, which would take time and surely face intense opposition ' including from special-interest groups who favor the status quo.
Jesse Rutledge, a spokesperson for Justice at Stake, suggests other reforms. Wisconsin's $10,000 individual donation limit for high-court races is 'on the high side.' The U.S. Supreme Court has upheld limits as low as $500.
Better still would be full public financing for state judicial campaigns. Currently, a Wisconsin Supreme Court candidate who accepted public financing would have an upward spending limit of $215,625 in exchange for getting ' or splitting ' $60,816 in available funds.
In 2002, following its first $1 million supreme court race, North Carolina became the first state in the nation to approve full public financing for supreme and appellate court candidates. Qualifying supreme court candidates who agree to spending limits get more than $200,000 in funds, plus up to three times as much in 'rescue' funds if faced with an opponent who eschews the deal.
Last year, eight of 12 judicial candidates in North Carolina accepted the funds, including five of the six winners. The program is considered a huge success.
'It's kept big, corrosive money out of these elections,' says Jack Betts, a columnist with the Charlotte Observer. Chris Heagarty of the North Carolina Center for Voter Education agrees: 'There are no more million-dollar races. The candidates like it. They have all of their money up front and don't have to spend all of their time fund-raising, and that's a big relief.'
Right now, in the heat of the campaign, both Annette Ziegler and Linda Clifford would probably welcome this relief. Just as likely, after April 3, the most ardent advocate of the changes needed to bring it about will be the one who doesn't win.
