Judge James P. Daley and Justice Ann Walsh Bradley
One of the most startling things about the Supreme Court contest between Justice Ann Walsh Bradley and challenger James P. Daley, the chief judge in Rock County, is that neither would play a role in a deciding the most watched case pending before the high court: the secret John Doe probe into whether special interest groups illegally coordinated with the campaigns of Gov. Scott Walker and Republican legislators.
But the reasons each gives for not participating runs counter to expectations. Bradley, who is called a “liberal activist” by her opponent, says she can’t hear the case — which would determine whether the John Doe investigation can continue — because her son is a lawyer working for a law firm that represents the conservatives; Daley, whose campaign is funded in part by a donation from the Republican Party, is among the “liberal” defendants trying to pursue the investigation.
“I can’t participate in that because I am a defendant,” Daley says in a phone interview with Isthmus, declining to comment further. He notes a secrecy order prevents him from discussing whether he has had a change of heart or whether he still believes that Walker’s campaign might have violated election laws and that the investigation should proceed.
Daley’s conflict has flown below the radar during much of this quiet race, although the special prosecutor involved in the secret investigation has called on at least four justices to disqualify themselves. Judicial ethics has emerged as one of the key issues in the race.
For decades, Supreme Court elections have been the dullest of dull. Justices often were appointed by the sitting governor to fill a portion of a 10-year term left vacant because of retirement or death. Those running for re-election rarely faced opposition. As for the issues, most judges declined to talk about cases they might have to decide, citing ethical concerns.
All that changed within the past two decades as political parties and special interest groups have poured millions of dollars into Supreme Court races around the country.
“In recent years the Wisconsin Supreme Court has offered the most dramatic illustration of what happens with courts suffering from too much politics,” writes Billy Corriher, director of research at American Progress in Washington D.C., in a 2013 report.
Why target the courts? Elections, says Corriher, “offer the opportunity for litigants and attorneys to influence the judges hearing their cases through campaign contributions or independent spending in judicial campaigns. The resulting conflicts can be more harmful than attempts to curry favors with legislators because the decisions of judges, unlike those of legislators, can impact a single individual or corporations.”
Mordecai Lee, a former Democratic legislator and professor of political science at the University of Wisconsin-Milwaukee, puts it this way: “It can get ideological wins on the cheap.”
Wisconsin’s high court was once deemed the most progressive in the nation, issuing decisions that predated the U.S. Supreme Court by decades on matters such as requiring a poor person charged with a crime the right to a defense lawyer.
In a 1966 speech at Marquette University, William O. Douglas, then associate justice of the U.S. Supreme Court, said, “We are just trying to catch up with the Wisconsin Supreme Court. We are almost at the point it was at 30 years ago.”
But there is now a clear conservative majority on the court, with special interest groups spending millions in recent years to elect justices. And while the Bradley-Daley matchup has been quiet so far, that may soon change.
“I’m expecting a huge advertising onslaught in the last two weeks,” says Matthew Rothschild, executive director of the Wisconsin Democracy Campaign. “It’s unlikely the WMC [Wisconsin Manufacturers & Commerce] will hold its fire. The tsunami of outside money in judicial races is leaving a stain on the entire state.”
In 2008, Michael Gableman defeated former Justice Louis Butler in a race that saw $6 million in spending, according to the Wisconsin Democracy Campaign, the elections watchdog group. Special interest groups spent $4 to every $1 spent by the campaigns. Gableman received $1.76 million in support ads from the WMC and another $987,000 from two other groups, compared to the $1.45 million Butler got from the Greater Wisconsin Committee. Gableman won but later faced an ethics charge related to ads he ran. The independent Judicial Commission sent the charges to the Wisconsin Supreme Court to decide. Gableman could not vote, and the others six split 3-3 on whether to proceed.
That divide among the justices is now often the norm: Bradley, N. Patrick Crooks and Chief Justice Shirley Abrahamson in one corner, and Gableman, David T. Prosser, Patience D. Roggensack and Annette Ziegler in the other. “Polarized,” “politicized” and “dysfunctional” are the adjectives often applied to the court in recent years.
The increase in spending from special interest groups raises questions about whether justices who receive special interest aid — directly and in the form of advocacy ads — should have to recuse themselves on cases involving these very same groups. Daley does not think so.
“If it is a legal donation, they should not have to step aside,” he says.
Bradley, though, says justices should recuse themselves from cases where they have received substantial contributions from the litigants. She cites a U.S. Supreme Court involving a mining executive who formed a not-for-profit that allowed him to skirt campaign laws and donate some $3 million to a candidate for the West Virginia Supreme Court; the incumbent ultimately was defeated. By a 5-4 vote, the U.S. Supreme Court ruled that the recipient of the money — most of it in the form of advocacy ads — created a probable bias and that the West Virginia justice should have stepped aside. That would have left the West Virginia high court tied, 2-2.
In 2010, in a split vote, the Wisconsin Supreme Court adopted a rule that reflects Daley’s position. It was written by the WMC and the Wisconsin Realtors Association.
“We now allow campaign committees to solicit direction from those with an interest before the court,” said Bradley at a forum sponsored by the Milwaukee Bar Association.
When should a judge not hear a case? At the same forum, Daley said judges should only recuse themselves on a case brought by a personal friend or by an organization to which the judge belongs. Money doesn’t matter as long as the donation is legal.
But, countered Bradley, “Just because it’s legal doesn’t mean it’s right.”
The current rule is unacceptable, added Bradley. “You can look at the roster of the cases before you and tell your campaign manager ‘let’s get campaign donations from those parties who are before the court.’”
At the forum Daley also pooh-poohed the charge that he is blatantly biased in favor of the GOP. He acknowledged that he had received $7,000 from the party but said it is an “in-kind” donation of office staff that hardly covers the full cost of office support his campaign needs. He countered charges that he has been campaigning almost exclusively at Republican events by asserting that Bradley met secretly with Democrats. She noted that a bipartisan group that includes former Republican Gov. Tommy Thompson’s wife Sue Ann sent a letter in her support to news outlets.
Daley has also criticized Bradley for her dissent from the majority in rulings that found Act 10 and voter ID constitutional. Laws legitimately enacted are presumed constitutional, he said. Asked if he could make that call without having heard the case, he replied: “I read the decisions.”
The election is April 7. If the past is an indication, voter turnout will be low. In the hotly contested 2011 race between Prosser and challenger Joanne Kloppenburg that was so close it resulted in a recount, fewer than 20% of the eligible voters turned out. Mordecai Lee, the political science professor, notes that Republicans turn out in greater numbers in low-turnout elections.
“Wisconsin politics have revolutionized Supreme Court races,” Lee says. “Not so long ago you could faintly recognize a candidate’s leanings, but that’s all changed. I don’t know why we still call them nonpartisan races.”
