The race for Wisconsin Supreme Court on the April 2 ballot is between a candidate who seeks to win by denying the relevance of his known political and ideological leanings and one who risks losing by refusing to acknowledge having any at all.
Judge Brian Hagedorn, who serves on the state’s District 2 Court of Appeals, insists no one should pay any mind to the anti-labor positions he defended as Republican Gov. Scott Walker’s chief counsel, his past writings equating gay sex with bestiality, or his role in founding a school that openly discriminates on the basis of sexual orientation and non-criminal sexual conduct.
“Every single judge who puts on a robe has views about the world,” Hagedorn told a conservative talk radio show host in early February. “I’m not running to impose whatever my viewpoints are.”
Meanwhile, his opponent, Judge Lisa Neubauer, a member of the same appellate court, proclaims to be utterly unencumbered by any predilection or bias, despite family ties to Democrats. She says in an interview: “I hear from people who say to me, ‘We’re not interested in seeing this race be about conservative or liberal; what we’re interested in seeing is a fair, impartial and independent court.’”
Such people may exist, but almost certainly do not represent the majority Neubauer needs to win. The reason many people care about this race, and why it is so vitally important to the future of the state, is precisely because the seven-member court is, like it or not, a political animal. There are clear and identifiable distinctions between the court’s conservatives, who now enjoy a 4-3 edge, and its liberals. For instance, liberals tend to be more mindful of the rights of criminal defendants and people injured by actions or products.
The outcome of this officially nonpartisan race could prove pivotal to the court’s ideological balance for years to come. At stake is a 10-year term to replace 43-year court veteran Justice Shirley Abrahamson, a liberal if ever there was one. A win by Neubauer would keep the court balance at 4-3 and set the stage for liberals to potentially regain a majority in 2020, when Justice Daniel Kelly, a Walker appointee who has inveighed against same-sex marriage and likened affirmative action to slavery, must face voters.
Large numbers of Democrats are expected to turn out for the 2020 election, which will coincide with the state’s presidential primary. Republicans in the state Legislature were so worried this put Kelly at a disadvantage that they tried moving the primary to a different date, until forced to drop the idea under protest. If liberals win both races, they will probably control the court at least until 2025.
“This is likely going to be the race that determines the philosophy that will govern the Supreme Court for the next 10 to 20 years,” Hagedorn told The Associated Press. “People understand what’s at stake in this race.”
Conservative Milwaukee radio host Dan O’Donnell was more explicit, writing that a liberal takeover “would immediately prompt new challenges to much of the conservative legislative advances Wisconsin made during Waker’s [sic] tenure; and everything from Act 10 to Voter ID to the most recent laws passed during December’s extraordinary session could be on the chopping block.” And, he warned, “any attempt at redistricting from the Republican-controlled state Legislature following the 2020 Census would be almost certainly blocked by this new liberal majority.”
Translation: If you want Democrats to have a shot at reclaiming a gerrymandered state Legislature — or just don’t think it’s okay to fire workers and expel students for being gay — you want Neubauer to win. But voting for her for these reasons may require a leap of faith, because she argues, credibly, that she is above all that.
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Lisa Neubauer was a lawyer and partner at the powerhouse law firm of Foley & Lardner for nearly 20 years, specializing in environmental cleanup litigation, before being appointed to the appeals court in 2007 by Gov. Jim Doyle, a Democrat. She subsequently won elections to two six-year terms, and became the 2nd District’s chief judge.
Prior to her appointment, Neubauer gave more than $8,000 to Doyle over a 15-year period, and smaller sums to other Democrats and liberal-leaning court contenders, including Abrahamson. Since then, she has donated only to her own campaigns. Neubauer’s husband, Jeff, is a former Democratic state legislator and state party chair who ran Bill Clinton’s Wisconsin presidential campaigns. Her daughter, Greta, is a Democratic lawmaker from Racine.
In 1978, when she was 21, Neubauer was strip-searched by Chicago police while trying to visit a friend who had been arrested; she became an unnamed plaintiff in a successful lawsuit that led to nationwide changes in police policy. “I realized in a very personal way how important the courts are in protecting people’s rights,” she says in a campaign ad on the experience.
But when asked “Are you now or have you ever been a liberal?” Neubauer answers, “What I am now is a judge.” A question about whether she is a Democrat yields the same response. She won’t even say whether she’s pro-choice “because I want to have an open mind about every single issue that comes before our court.”
It’s a risky approach, in light of recent past elections. JoAnne Kloppenburg ran for the Wisconsin Supreme Court twice with approximately the same message and lost both times. “I am not running to advance any political agenda, be it conservative or liberal or anything else,” she told me in 2011, when she lost to incumbent Justice David Prosser, whose campaign manager crowed that his candidacy was about “protecting the conservative judicial majority” under newly elected Gov. Walker and the GOP-controlled Legislature. (Hagedorn, at the time, sent out an email urging people to vote for Prosser, explicitly to protect “Walker’s agenda.”)
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In 1978, Neubauer was strip-searched by police while trying to visit a friend in jail. She was part of a lawsuit that led to nationwide changes in police policy.
In 2016, Kloppenburg again shrugged off the liberal label, insisting, “I am a judicial independent.” She lost that year to Rebecca Bradley, a Walker appointee who said, “It’s fair to call [me] a judicial conservative.” Bradley, like Hagedorn, drew attention for past writings, including opinion pieces in which she called abortion “murder,” feminists “angry, militant, man-hating lesbians,” being gay “an abnormal sexual preference,” and people with AIDS “degenerates” who deserved to die.
Bradley wrote these screeds as a college student and later renounced them, saying she was “frankly embarrassed at the content and tone of what I wrote those many years ago.”
Hagedorn has his own closetful of past writings that clearly establish his extreme ideology, but they were written when he was in his late 20s and have not occasioned him to express any regret.
In contrast to Neubauer, last year’s successful liberal Supreme Court contender, Rebecca Dallet, clearly signaled her liberal political leanings to supporters. Asked about abortion, she replied: “Roe v. Wade is the law of the land and I care about women’s rights to make choices regarding their bodies.” She ran an ad bashing President Donald Trump for attacking “our values.” When The Associated Press wrote an article that referred to Dallet “and other Democrats,” I inquired about it. Her campaign coordinator replied, “We will not be making a correction on that quote.”
Dallet’s opponent was Michael Screnock, a circuit court judge in Sauk County who, similar to Hagedorn, claimed his beliefs and past actions didn’t matter. As a young man, Screnock was arrested twice for blocking access to a Madison abortion clinic, later saying this was “not something I’ve ever regretted doing.” His campaign was run by Republican political operatives and backed by the NRA.
While Dallet repeatedly branded Screnock an “extremist” who was “bought and paid for” by special interests, Neubauer seems determined to leave such indelicacies to her campaign manager and supporters. Asked if she thinks Hagedorn is anti-LGBTQ or anti-choice, she responds: “I would say that he’s put a blog out there that’s made his views pretty clear.”
And what do these clearly stated views convey? Neubauer: “I would leave it to the voters to make their own judgments.”
WDJY
Brian Hagedorn was appointed to the appeals count by Walker in 2015 and elected in 2017. He calls himself “an originalist and textualist,” defined as meaning “statutes and the Constitution should be interpreted in accordance with the original public meaning of the words themselves.” He claims Neubauer prefers “to read the law in a way that gives judges the power to manipulate language to the judge’s own liking.”
In 2005, when he began writing his blog, “Anno Domini” (Latin for “In the year of our Lord”), Hagedorn was 27, a student at Northwestern University School of Law, an intern at Foley & Lardner, and a married father of two. He was, then as now, a member of the ultraconservative legal group the Federalist Society. Like Neubauer, he has partisan family ties: his father, Sam, is chairman of the Milwaukee County Republican Party.
The blog, first reported by the Milwaukee Journal Sentinel, ran for a little more than a year. Its target audience, Hagedorn wrote, was “fellow Christians engaged in the culture wars with me.”
He proclaimed “Christianity is the correct religion, and that insofar as others contradict it, they are wrong.” He warned that a landmark 2003 U.S. Supreme Court ruling striking down laws against homosexual behavior opened the barn door to the legalization of sex with animals, writing: “The idea that homosexual behavior is different than bestiality as a constitutional matter is unjustifiable.”
Hagedorn called the U.S. Supreme Court’s ruling in Roe v. Wade “one of the worst and most unjustifiable decisions in history,” saying legal abortions since then left the nation “45 million Americans short.” He branded Planned Parenthood “a wicked organization more committed to killing babies than to helping women.” He deemed the NAACP “a disgrace to America.” He fumed that a prior workplace’s observance of Gay and Lesbian Pride Month was an “attempt to have us all ‘celebrate’ homosexuality and other deviances.”
In other blog posts that have eluded public notice, Hagedorn called for amending the Constitution to prohibit flag burning and blasted the “irresponsibility of the anti-war Left” for not recognizing its “moral responsibility to help ensure our victory in Iraq.”
Hagedorn, who declined to be interviewed for this article, has not apologized for any of these pronouncements. Rather, he claims the mantle of victimhood: “If you have ever been a Catholic or Christian of various stripes, you’re going to get attacked for your faith.”
Yet the concerns about Hagedorn don’t just deal with the thoughts in his head but the actions he has taken in positions of authority.
Soon after Gov. Walker took office in 2011, chief counsel Hagedorn filed a motion to stop defending the state’s Domestic Partner Registry against a legal challenge brought by Wisconsin Family Action, an anti-LGBTQ group. He argued that the 2009 law creating the registry, which provided limited benefits to gay and lesbian couples, including the right to hospital visitation, was unconstitutional. A state appeals court and Wisconsin Supreme Court both later unanimously upheld the law.
Gordon Lang
Hagedorn wrote in a blog post: “Christianity is the correct religion, and that insofar as others contradict it, they are wrong.”
“My faith impacts everything I do in the workplace,” Hagedorn told his alma mater, Trinity College, in 2014, when he was honored as alumnus of the year. He recalled that when Walker was facing a recall election over his union-busting Act 10, “God gave me and my wife an incredible trust in him during that time. We held on to Matthew 6, so we weren’t worrying about tomorrow, but instead seeking his kingdom and righteousness.”
In 2015, 2016 and 2017, Hagedorn was paid more than $3,000 to give speeches to Alliance Defending Freedom, an anti-LGBTQ group that has backed the mandatory sterilization of transgender people. And, as the liberal advocacy group One Wisconsin Now was the first to report, Hagedorn and his wife, Christina, in 2016 helped found a openly discriminatory school.
The Augustine Academy, a private Christian K-8 school in Waukesha County, bars teachers, students and even their parents from being in gay relationships. All must adhere to a Code of Personal Conduct that includes “never advocating or participating in immoral sexual activity (defined as any form of touching or nudity for the purpose of evoking sexual arousal apart from the context of marriage between one man and one woman).” The policy expressly states that kids can get kicked out for the actions of their parents.
Applicants for teaching jobs must affirm that they are in “complete agreement” with the school’s “Statement of Faith,” which includes this assertion: “Adam and Eve were made to complement each other in a one-flesh union that establishes the only normative pattern of sexual relations for men and women.” It also says a person’s gender is not “subject to one’s personal preferences” but “biologically established by God for his glory.”
Hagedorn and his wife, who have homeschooled their own five children, continue to serve on the Augustine Academy’s board of directors.
The revelations prompted the Wisconsin Realtors, one of the state’s most powerful lobby groups, to revoke its endorsement of Hagedorn and ask him to return its $18,000 donation. Hagedorn’s campaign responded indignantly: “Lisa Neubauer and her liberal allies will do anything to take over the court, including attacks on people of faith.”
Hagedorn’s insistence that voters should pay no attention to his views is all the more questionable given that Hagedorn himself, in one of his blog posts, argued that “a candidate’s position on abortion is my litmus test as it is for most conservative Christians.”
In other words, Hagedorn considers nothing more important in assessing a candidate’s fitness than knowing what they believe — except for in his case, where such things are completely irrelevant.
Janine Geske, who served on the Wisconsin Supreme Court from 1993 to 1998 and now teaches at Marquette University School of Law, uses the term “middle of the road” to describe Neubauer, saying she’s “not somebody who’s been out there on issues or politics” — in contrast to Hagedorn, who “has a political history.” She thinks a judge’s political and moral views can fairly “be in the balance of all of the other things that they consider.” A problem arises when this makes them predictable.
On the current court, this is often the case. Alan Ball, a history professor at Marquette, writes a blog on the state Supreme Court in which he has documented a strong tendency among court liberals and conservatives to stick together. For instance, in the last two complete terms, 2016-17 and 2017-18, the court’s five conservatives voted on the same side as each other on non-unanimous cases between 63 percent and 97 percent of the time. Meanwhile, Justice Abrahamson voted in accord with Chief Justice Patience Roggensack on these cases less than a quarter of the time.
“I’ve used the term ‘polarization’ to describe it,” Ball says in an interview. But while evidence of this is greater now than in the past, how it will play out in the future is anybody’s guess: “From what I have heard, there’s no possible way that Neubauer would be as liberal as Abrahamson.”
Neubauer, while calling Abrahamson “a tremendous role model for women,” does not seem eager to put such speculation to rest. She says she has rendered “thousands and thousands of decisions” during her 11 years on the appeals court “and you can’t look at my decisions and say, ‘Lisa has some ideology, or something that she brings to the decision other than just her scholarship, and her intention to follow the [U.S. and state constitutions] and follow the law.’”
Maybe you can’t. An Isthmus analysis found that Neubauer and Hagedorn agreed on 43 of the 46 cases in which they both served on three-judge Dist. 2 panels that issued opinions last year. And a look at all of the criminal cases that led to opinions over a three-year period found that she and Hagedorn both almost uniformly ruled against criminal defendants.
The most significant case on which the two have disagreed, decided in 2016, concerned a convicted murderer named Jeffrey C. Denny who petitioned for DNA testing to prove his innocence. Neubauer, writing the majority opinion, said this should be allowed under a prior state Supreme Court ruling. Hagedorn dissented in part, but agreed that “we are bound by the interpretive framework” of the earlier ruling. The state Supreme Court later overturned this precedent ruling in order to overrule Neubauer and deny DNA testing.
Hagedorn cites the Denny case as an example of Neubauer’s willingness to “exercise judicial power to achieve her version of a just result.” But it’s actually a much better example of conservative judicial activism. As Justice Ann Walsh Bradley argued in dissent, the court, having failed to persuade lawmakers to rewrite the law, stepped in “to perform the Legislature’s job” — the very thing that judicial conservatives swear up and down that they will never do.
“Nothing in the DNA testing statute has changed in the decade since this court decided” the earlier case, Bradley wrote. “The only thing that has changed is the composition of this court.” There were now enough conservatives to interpret the statute in a different way.
In fact, judicial conservatives in Wisconsin and elsewhere routinely act in accordance with their biases, as do liberals. As a candidate last year, Rebecca Dallet cited a number of cases where this had occurred — including the state Supreme Court’s 2015 ruling to shut down the John Doe probe into alleged coordination between Walker’s campaign and outside groups and its 2014 ruling upholding Act 10.
Even Kloppenburg, when I interviewed her in 2016, criticized these two rulings, along with the Supreme Court’s 2014 decisions upholding the state’s Voter ID law, on grounds that they amounted to legislating from the bench.
But Neubauer declines to criticize the court’s ruling on Act 10, or any other. She would not name a single state Supreme Court or U.S. Supreme Court decision with which she disagrees.
“Judge Neubauer will not comment on decisions by the U.S. Supreme Court or the [state] Supreme Court,” says her campaign manager, Tyler Hendricks.
Neubauer does criticize the refusal of the state Supreme Court’s conservative majority to hear a petition from 54 retired state judges to reconsider its rules for judicial recusal. The state’s current rule, which was literally written by special-interest groups, holds that each individual justice gets to decide if he or she can be impartial, regardless of how it looks or what others may think. (Hagedorn has said, for instance, that he will not recuse himself from cases involving Planned Parenthood, a group he has called “wicked.”)
“I think it is a shame, a terrible shame, that the Supreme Court didn’t have hearings on that petition,” Neubauer says. “And I do think we should have a stronger recusal rule. But what that rule would look like, I’d want to have an open mind, just like everything else I do as a judge.”
Neubauer also laments the role of money in state Supreme Court races. Early on, she asked that outside special interest groups stay out of the race, which is not going to happen. In every competitive Wisconsin Supreme Court race since 2007, spending by outside groups has exceeded spending by the candidates’ own campaigns. And in every race since that time, the candidate who led in overall spending won.
In this race, the big business lobby Wisconsin Manufacturers and Commerce has declared its support for Hagedorn, and an anti-gerrymandering group run by former Democratic U.S. Attorney General Eric Holder is expected to back Neubauer, as it did Dallet.
Tim Burns, a Madison attorney who came in third in a three-way primary last year for the court, and who went much further than most candidates in identifying himself as a “champion of liberal, Democratic and progressive values,” says he gets Neubauer’s reticence to discuss political leanings. “When you have somebody like Trump, attacking our basic norms and values, of course there’s a great desire to strengthen and uphold courts as being above that.”
But the courts aren’t. They haven’t been for some time. And this election is not going to change that.
In refusing to clearly state her judicial beliefs, Neubauer is running every bit as much of a stealth campaign as Hagedorn. Voters have every reason to suspect what kind of justice he would be. In her case, voters run the risk of not getting what they hoped for.
Brian Hagedorn
Resident of Oconomowoc, 41, married, five children
Graduate of Trinity College and Northwestern University School of Law, where he was president of the campus Federalist Society. Appointed as Gov. Scott Walker’s chief legal council in 2011; named by Walker to the Court of Appeals in 2015, elected in 2017.
Endorsed by two of the four current state Supreme Court conservatives, Rebecca Bradley and Daniel Kelly, former Justices David Prosser and Michael Gableman, and about three dozen current and former sheriffs.
Soundbyte: “Personal political values have no place on the Wisconsin Supreme Court. The justice’s role is to say what the law is, not what the justice thinks the law should be.”
Lisa Neubauer
Resident of Racine, 61, married, three children
Graduated from UW-Madison and University of Chicago Law School; worked at Foley & Lardner in Milwaukee from 1988 to 2007; appointed by Gov. Jim Doyle to 2nd District Court of Appeals in 2007, elected twice thereafter, in 2008 and 2014.
Endorsed by nine current (of 15 total, besides herself) state appeals judges, hundreds of circuit court and municipal judges, and dozens of county sheriffs and district attorneys.
Soundbyte: “I’m running because I care about making sure our court is fair, impartial, independent, and upholds the rule of law.”
