David Michael Miller
Justice Rebecca Bradley’s bedrock declaration in support of her candidacy for Wisconsin Supreme Court, which she proclaims on her website and on the campaign trail, is this: “The role of a justice is to interpret the law, not invent it.”
Bradley says this pledge, and her parallel promise to “not legislate from the bench,” sets her apart from her opponent on the April 5 ballot, Judge JoAnne Kloppenburg. It’s why Bradley believes that, after being appointed to the court last October by Gov. Scott Walker, she deserves election to a 10-year term.
Yet when asked in a recent interview to give examples of occasions in which Kloppenburg, an appellate court judge for the past three and a half years, has crossed this line, Bradley comes up empty.
“I don’t comment on decisions coming from the court of appeals,” Bradley says, “whether they’re from Judge Kloppenburg or not, because in my position as a Supreme Court justice I may be called upon to review those decisions.” She also declines to cite any instance in which the Wisconsin Supreme Court has run afoul of these standards, saying the underlying issues “could come back to us.”
Kloppenburg, who was elected to the appeals court in 2012, a year after she narrowly lost a race for Supreme Court against Justice David Prosser, has issued hundreds of appellate court decisions. If she were an activist judge who legislates from the bench, shouldn’t Bradley be able to give a few examples?
Bradley admits her critique is not drawn from Kloppenburg’s record but “her words in this campaign” — especially her expression of admiration for U.S. Supreme Court Justices Ruth Bader Ginsberg and Sonia Sotomayor. It’s an assertion untethered to any evidence.
Kloppenburg, for her part, agrees that justices should not legislate from the bench. But, unlike Bradley, she has examples of where she thinks this has occurred.
For instance, in the Wisconsin Supreme Court’s 2014 rulings upholding the state’s Voter ID law, Kloppenburg says the court’s majority “seemed to suggest that the regulations as written were unconstitutional, so [they] put language in to make those regulations constitutional, rather than sending it back to the Legislature to fix.”
Similarly, she says the court majority, in upholding the state’s Act 10 changes to collective bargaining, “seemed to be answering the question it wanted to answer rather than the question that was put to the court by the parties.” And she faults the court’s decision shutting down the John Doe probe into alleged illegal coordination between Walker and outside groups, for citing published articles from outside the court record, later “shown to be untrue,” about the execution of search warrants.
“It’s Judging 101 that at the appellate court level you’re limited to [considering] the facts put into evidence,” Kloppenburg says.
Kloppenburg also cites a 2015 case, State v. Crute, in which she wrote an opinion for a unanimous appellate court declining the state’s entreaties to “read into the rules something that wasn’t there” to correct a fundamental flaw.
So here are three examples from Kloppenburg of court conservatives overstepping their bounds, plus one in which she was asked to do so but didn’t. That compares to zero examples from Bradley, who has made opposition to overstepping her centerpiece issue.
It’s one of many ironies in an electoral contest that is now beginning to explode into the consciousness of Wisconsin residents, given the revelations about Bradley’s past editorial musings and the inevitable bombardment of television and radio ads alternatively offering insubstantial pablum and harsh attacks.
This is a monumentally important contest for Wisconsin’s future, one that will have repercussions for the state’s justice system for years to come. Responsible voters need to ignore the commercials and focus on the reasons such extraordinary amounts of money and effort are being put into swaying the outcome.
One complicating factor in deciding whom to vote for in a state Supreme Court race is that most candidates for this office say the exact same things. They promise to be fair and impartial, and to decide cases based on the law and the facts — nothing more, nothing less.
But often they fall into distinct ideological camps, with conservatives tending to be harsher on people accused of crimes and less concerned about injured parties, and liberals being more mindful of the rights of criminal defendants and people hurt by actions or products.
Bradley v. Kloppenburg will not shift the balance of power on the Wisconsin Supreme Court. Excluding Bradley, the seven-member court has four conservatives: Chief Justice Patience Roggensack and Justices David Prosser, Annette Ziegler and Mike Gableman. The court’s two undeclared liberals are Justices Shirley Abrahamson and Ann Walsh Bradley (no relation).
Abrahamson, the court’s longest-tenured member, was chief justice for nearly 19 years before a state constitutional amendment backed by Republicans changed the rules to allow Roggensack’s ascent. This exacerbated tensions on an already fractured court, one whose members are at each other’s throats — once literally.
Rebecca Bradley, 44, who filled a seat vacated by the court’s lone centrist, Patrick Crooks, is backed by conservatives. She says “it’s fair to call [me] a judicial conservative,” but usually avoids the term because “it connotes something political.” More comfortably, she wears the labels “originalist” or “textualist” — judicial philosophies which hold that the Constitution means only what the Founders meant it to mean. (See: “Who Do They Love?” below.)
Kloppenburg, 62, is backed by liberals but declines to embrace this label, insisting “I am a judicial independent.” She says no one looking at her many appellate court decisions could find any clearly “written by a liberal judge or a conservative judge.” It’s a point even Bradley seems ill-prepared to refute.
Bradley, for her part, purports to be nonpartisan but has unusually conspicuous ties to ideological and political groups. She’s belonged to the Republican National Lawyers Association and given money to Walker and the Republican Party of Milwaukee County. In the current campaign, she has accepted help from the state GOP and attended GOP events. She is past president of the Milwaukee chapter of the Federalist Society, a conservative lawyers group. In 2006, she wrote a column defending the right of pharmacists to refuse to fill prescriptions for contraceptives on religious grounds.
“Rebecca Bradley brings a very partisan background and partisan approach to the law,” Kloppenburg says. “I’m the one with a proven track record as an independent, impartial, fair, thoughtful and principled appellate court decision maker.”
Certainly, Bradley has a more colorful past. As a Marquette student, she wrote opinion pieces, unearthed by One Wisconsin Now, in which she referred to being gay as “an abnormal sexual preference” and to people with AIDS as “degenerates,” suggesting they deserved to die. Bradley has apologized, saying in a statement that she is “frankly embarrassed at the content and tone of what I wrote those many years ago.”
Bradley has also come under fire for writings in which referred to abortion as “murder” and described the feminist movement as “largely comprised of angry, militant, man-hating lesbians who abhor the traditional family” — disclosures that have solidified her image as a person who holds extreme views. And she represented a client with whom she was romantically involved, in a child custody case, raising ethical concerns.
According to Kloppenburg, Bradley was “plucked out of private practice and fast-tracked to three positions on three courts in three years,” including Walker’s “very political decision” to appoint her to the Supreme Court last fall after Crooks’ sudden death. Bradley was an announced candidate for the seat, to which Crooks was not seeking reelection.
While this gave Bradley the advantage of incumbency, it also saddled her with heavy baggage in a state where Walker, after years of sowing division and a failed presidential run, has an approval rating south of 40%. But Bradley is an engaging candidate, a more natural politician than Kloppenburg. And she can count on major backing from state conservatives, who can now spend more than ever due to state campaign finance changes pushed through by Republicans, and from outside interest groups making unregulated, dark-money contributions.
The race, like others in recent years, might ultimately come down to the last thing it should: Who has the most money from those seeking to sway the court’s ideological tilt.
Rebecca Bradley: “The role of a justice is to interpret the law, not invent it.
In the six Wisconsin Supreme Court races since 2007, outside interest groups spent at least $14.3 million, according to numbers compiled by Wisconsin Democracy Campaign. The candidates themselves spent just $9 million. They are often secondary players in their own races.
In all six elections, the candidate backed by the most spending won.
In the current race, Wisconsin Manufacturers & Commerce, the big business lobby, has said it will support Bradley. WMC has invested $5.6 million over the last decade on conservative Supreme Court contenders; Wisconsin Club for Growth and other conservative groups chipped in another $3.5 million. And Bradley will get major additional help from the Wisconsin Alliance for Reform, a dark-money group with Republican ties that spent $1 million touting her in preprimary ads. The group has already spent another $1 million on new ads for the general election.
Kloppenburg probably can’t win against this avalanche of pro-Bradley spending without outside backing on her behalf. One likely player is the Greater Wisconsin Committee, a dark-money group with Democratic and union ties that has spent $4.2 million on state Supreme Court races since 2007.
The race could also draw in national groups concerned about civil liability cases, says Laurie Kinney, spokeswoman for Justice at Stake, a Washington, D.C.-based nonprofit that advocates for fair courts. This has happened in other states, including Pennsylvania, which last fall set a new national record for the costliest state supreme court race in U.S. history, at $16.5 million.
Two national groups, the Republican State Leadership Committee and Judicial Crisis Network, have set out to elect conservatives to state supreme courts. In recent elections for two supreme court seats in Arkansas, TV ad spending by these two groups vastly exceeded that of the candidates themselves, and the candidates backed by these outside interests won.
Both groups have played a covert role in past Wisconsin Supreme Court elections. In the 2013 race in which Justice Roggensack was re-elected, according to a Justice at Stake report, the Judicial Crisis Network funneled $500,000 to Wisconsin Club for Growth, and the State Government Leadership Foundation gave $120,000 to WMC and $25,000 to Club for Growth.
In the current election, Kinney says, these groups may feel Wisconsin is not worth the effort, since conservatives will retain control of the court even if Bradley loses. Or they may feel a Kloppenburg win would shift the balance “too close for comfort.”
Another factor that will likely send spending skyward is the closeness of the race. A recent Marquette Law School Poll showed Bradley and Kloppenburg in a virtual dead heat, with a large number of undecided voters.
When outside groups get involved, Kinney notes, they tend to focus their message on law-and-order themes — the familiar flashing squad car lights and slamming jailhouse doors — even though the groups themselves often “have no connection to crime or victims advocates.”
They care about other things, like minimizing the consequences for businesses that injure people.
Bill Lueders
JoAnne Kloppenburg: “I’m the one with a proven track record as an independent, impartial, fair, thoughtful and principled appellate court decision maker.”
Before her election to the appellate court in 2012, Kloppenburg was an assistant state attorney general for 23 years, dealing largely with environmental regulation as well as constitutional law, appellate law and civil litigation. Her campaign says she applied five times for judicial appointments, four at the state level and one federal, all unsuccessfully.
Bradley spent 16 years in private practice, including defending physicians against medical malpractice lawsuits and businesses in product liability cases. Walker tapped her for Milwaukee Circuit Court in 2012, where she handled children’s cases and won an election; for appellate court in May 2015; and, five months later, for Crooks’ Supreme Court seat.
In some early cases, Bradley has sided with court conservatives, including a decision last December to reject a rule petition from Abrahamson calling for a committee to review the Wisconsin Judicial Code of Conduct. Bradley says she and others objected to the creation of a committee — not to the idea that the code should be subject to review. She doesn’t identify anything she’d like to change.
Kloppenburg calls for two changes. First, she wants the court to stop letting judges and justices decide whether they should step aside from hearing a case based on a subjective standard (“Do I think I can be fair?”) and instead adopt, as have other states, an objective standard (“Would a reasonable person have reason to question my impartiality?”).
Second, Kloppenburg thinks the court should revisit its 2010 decision to amend the code to state that a campaign endorsement or contribution can never in itself require judicial recusal. The new rule was actually written by two of the state’s top special-interest groups, WMC and the Wisconsin Realtors Association.
Bradley says she’s fine with these two parts of the code. She thinks a subjective standard makes sense because “no one else can look inside a judge’s mind and determine whether or not” he or she can be impartial. “I trust members of the judiciary to make those determinations.”
Bradley declines to weigh in on any past state or federal case. Not the U.S. Supreme Court’s lifting of the gay marriage ban. Not the state cases involving Walker’s gutting of public employee unions. Not the Wisconsin Supreme Court’s decision to terminate the John Doe probe.
A 2007 federal court ruling made it clear that judicial candidates in Wisconsin are free to discuss their beliefs on issues and prior rulings so long as they don’t promise to rule one way or another. But Bradley still won’t go there, saying she did not sit in on the oral arguments or read the briefs, and that any “public pronouncements” she makes are “contrary to the duty of being impartial” and could lead to her having to recuse herself from hearing cases.
But in her applications for judicial appointments, Bradley answered a standard question on what she considers the best and the worst U.S. Supreme Court rulings of the last three decades. Her pick for “best” was Good News Club v. Milfred School District, a 2001 case in which the court ruled it was an unconstitutional infringement on free speech for a public school to deny a private Christian group access to a room to hold after-school Bible lessons.
Bradley’s “worst” case was Kelo v. City of New London, decided in 2005. Here a divided court expanded the government’s use of eminent domain to force the transfer of land from one private owner to another to promote economic development. The case, which Bradley wrote “poses a threat to every property owner in the United States,” drew a national backlash, including objections from the AARP, the NAACP and the Libertarian Party.
Kloppenburg, who doesn’t recall being asked these questions when she applied for appellate court judgeships, nonetheless gives examples of High Court rulings she considers good and bad.
On the plus side, Kloppenburg says it was “a very exhilarating week in June when the Supreme Court handed down a trilogy of decisions on the right to marry, fair housing and access to health care.” And she criticizes rulings that reduced voting-rights protections for minorities, including a 2013 U.S. Supreme Court decision that eliminated higher hurdles for changing voting laws in states with histories of racial discrimination.
Kloppenburg declines to say whether she thinks corporations are people and money is speech, noting that the U.S. Supreme Court “has certainly so held and as a result voters need to be heard more loudly than money.” Bradley also declines to comment on these questions, except to say, “I follow the law as it’s pronounced by the U.S. Supreme Court. I am bound by that.”
Law enforcement split on picks
Wisconsin Supreme Court Justice Rebecca Bradley, seeking election to a 10-year term on April 5, has impressive support from law enforcement. She’s been endorsed by more than half of the state’s 72 county sheriffs and 14 county district attorneys, and by organizations including the Milwaukee Police Association and Milwaukee Police Supervisors’ Organization.
Her rival, Judge JoAnne Kloppenburg, has secured an endorsement from the Wisconsin Professional Police Association, “the state’s largest law enforcement group” with nearly 10,000 active and retired members. Executive director Jim Palmer says the group’s 27-member board made its pick after conducting hour-long interviews with both candidates.
The group’s endorsement, Palmer says, is always up for grabs. In 2015, when Supreme Court Justice Ann Walsh Bradley, considered a liberal, faced a challenge from Rock County Judge Jim Daley, seen as conservative, the WPPA was so equally divided it did not endorse. (The group also declined to endorse in the 2011 race between Kloppenburg and Justice David Prosser, after it was unable to arrange sit-downs with both candidates.)
But this time, Palmer says, the group’s preference was “overwhelming” — even though, as an appellate court judge, Kloppenburg ruled against the WPPA on an open-records case. Kloppenburg, he relates, “very clearly demonstrated an impressive knowledge of the way courts analyze law enforcement conduct.” She freely discussed the relevant legal standards, in specific reference to cases that have come before her on the court of appeals.
Bradley, in contrast, refused to discuss any past state or federal decision, Palmer says. These include a recent Supreme Court case in which Bradley, despite not having been around for oral arguments, joined court conservatives in casting the deciding vote to expand the power of police to seize evidence. (The losing party filed a motion for reconsideration, arguing that Bradley’s participation “promoting law enforcement in an election year...demonstrated an appearance of bias and impropriety.”)
“We just never, ever encountered a candidate who offered so little to substantiate her judicial philosophy,” Palmer says. “In fact, with respect to other law enforcement associations that have endorsed Bradley, I don’t know on what basis those endorsements could have been made.”
Mike Crivello, president of the Milwaukee Police Association, and Nick Kerhim, president of the Milwaukee Police Supervisors’ Organization, dodged requests to discuss their endorsements. Ozaukee County Sheriff Jim Johnson, president of the Wisconsin Sheriffs and Deputy Sheriffs Association, another listed Bradley endorser, also passed up a chance to put in a good word for her.
— B.L.
Who do they love?
It’s a question every candidate for state Supreme Court is asked: Which U.S. Supreme Court justices do you most admire?
Judge JoAnne Kloppenburg, seeking election to Wisconsin’s court, has picked Ruth Bader Ginsberg and Sonia Sotomayor. Her rival, Justice Rebecca Bradley, finds this highly objectionable. These two justices, she accuses, “espouse a judicial philosophy that believes the Constitution is a living, breathing document, that it should change to reflect changing social and political conditions.”
But here is what Kloppenburg actually says about Ginsburg and Sotomayor: “They seem to share my view of the Constitution as protecting individual rights and promoting a more fair and equal society.” Does Bradley disagree that the Constitution calls for protecting individual rights and promoting equality?
“There are individual rights that are protected under the Constitution,” Bradley replies. “But when she talks about a more equal society, that’s a very subjective statement,” one whose meaning can vary from judge to judge.
Bradley named Antonin Scalia, before his recent death, as the U.S. Supreme Court justice she most admires, along with Clarence Thomas and Samuel Alito. “These three justices have the judicial philosophy I follow,” she says, including their embrace of originalism: the notion that the Constitution must be interpreted in light of the Founding Fathers’ original intent.
She notes that Scalia exhibited qualities that surprised others, such as being “protective of the rights of criminal defendants.” (That’s true only to a point — Scalia once opined that there is nothing unconstitutional about imposing the death penalty on people who are actually innocent.)
And originalism, as legal historian Melvin Urofsky has noted, “gives conservative judges a fig leaf to cover their activism.” He cites Scalia’s concurrence in the infamous 2010 Citizens United decision, in which he claimed that the Founders meant to give free speech rights to corporations. This “astounded and dumbfounded historians who know that corporations barely existed in 18th-century America.”
— B.L.
