Last week, I wrote a post titled “What is Joe Donald’s judicial philosophy?,” where I lamented the lack of information available about Judge Joe Donald compared to Justice Rebecca Bradley and Judge JoAnne Kloppenburg, the other people vying for a seat on the Wisconsin Supreme Court in Tuesday’s primary. Shortly after the post went up, Donald’s campaign reached out to me asking if I’d like to meet with him.
I was initially wary. I knew this post would come out within days of the Feb. 16 election, and I worried that an interview piece with only one candidate would look like an endorsement.
Still, my post was all about how I didn’t know enough about Donald as a Wisconsin Supreme Court candidate. Here was an opportunity to get my questions answered. So I said yes and met with him on Friday afternoon.
Donald did get in one good comment about my post. In that post, I compared Bradley and Kloppenburg’s judicial philosophies to chain restaurants. I said Donald was some unknown restaurant where I couldn’t see what was on the menu.
“If I was a restaurant, my restaurant would serve justice,” says Donald.
But the conversation moved into more serious matters as he mentioned the difficulty of making statements about nuanced and complicated case law in campaign sound bites.
“It is very hard to say how one would rule on a case unless it is sitting right in front of them,” says Donald. “Does a law square with our Constitution? That’s sometimes difficult to say. There are laws that are constitutional as written but unconstitutional in their execution. So you have to look not only at the creation of the law but at the application of the law.”
I asked Donald to detail his general philosophy a bit more, what he thought the role of the judicial branch should be.
“You always start with the facts. But there are times when you need to go a step further and ask, What is the purpose? What are the consequences? My ancestors were chattel, that was the law of the land,” says Donald, who is African American. “So sometimes, even when something is the law of the land passed by the legislative branch, you need a strong, independent court to have the backbone to say this law is unconstitutional. This violates our fundamental freedoms.”
I mentioned that he would be the first elected African American justice in a state with horrible racial incarceration disparities.
“The historical significance of my election would not be lost on me,” says Donald who detailed his family’s working-class background and how he was the first in his family to go to both college and law school.
“But it isn’t the only factor. It can’t be. I’ve got 20 years of experience as a judge, working to remain fair and consistent and focused on applying the law,” says Donald.
One of my biggest questions about Donald was that I wasn’t exactly sure how his experience establishing a Drug Treatment Court in Milwaukee County would apply to the Wisconsin Supreme Court.
“We are confronted with a situation where there is a huge disparity in incarceration. That’s a fact that everyone recognizes,” Donald says. “We say to a group of people, because of your background, because of where you are growing up, there is a higher probability that they will end up in the criminal justice system, where they will be denied those fruits of liberty. I believe that is fundamentally unfair.”
This is where I saw how 20 years on the bench has shaped him. He has seen these disparities closer than most. His experience showed through when I asked him about a recent Wisconsin Supreme Court decision where Bradley acted as the deciding vote. It drastically expanded police powers to search a residence in Wisconsin.
“The police are there to protect, not to be a hammer. People need to feel like they are being treated fairly. They need to feel like there is procedural jurisprudence, that investigations are done in a consistent, fair manner,” says Donald.
Kloppenburg has a great background to be Wisconsin Supreme Court Justice. She has extensive experience working as a clerk at the Wisconsin Supreme Court, serving as assistant attorney general and as an appellate judge. That’s a pretty impressive resume. I initially wondered if Donald’s experience at the Circuit Court level, working with the people who are affected by the decisions made by the Wisconsin Supreme Court, is important too. Donald has also had to face forms of discrimination that no current member of the court has had to face. As Donald himself says, that can’t be the only factor, but I can’t discount it either.
Donald would bring a different perspective and different work experience than Kloppenburg, but I can’t say it is less valid. While I disagree with pretty much all of Bradley’s positions on the law, I think her experience as a lawyer working on civil and intellectual property cases has value too.
They offer three very distinctive visions for our court moving forward. A judge with 20 years of experience working in our state’s biggest county. A judge with extensive experience in our state’s Department of Justice and our appellate courts. A justice who’s risen rapidly through the ranks in only a few short years. On Tuesday, the small percentage of voters who go to the polls will have the opportunity to choose between those visions. The top two candidates will move on to the April 5 general election.