Supreme Court Justice Daniel Kelly (left) is being challenged by Dane County Judge Jill Karofsky and professor Ed Fallone (right).
During a debate in January between the two non-incumbent candidates for Wisconsin Supreme Court at Firefly Coffeehouse in the village of Oregon, an audience member asked why they were “not promoting each other’s candidacies,” given that both agreed on the importance of defeating the incumbent, Justice Daniel Kelly.
One of the contenders, Dane County Judge Jill Karofsky, answered bluntly: “It’s just the way Wisconsin is right now. The chances of both of us making it through the primary are very, very weak. I can’t imagine how that would happen. Dan Kelly is going to make it through this primary, and we need to figure out how we can make sure that [he] does not get 10 more years on our Wisconsin Supreme Court.”
Karofsky and the other challenger, Marquette University Law School professor Ed Fallone, hope to be one of the two top voter-getters, along with Kelly, in the Feb. 18 primary and advance to the general election, which will help shape the court’s ideological balance for years to come.
If Kelly wins, the court’s conservatives will retain their 5-2 domination at least through 2026, assuming the elected justices all finish their 10-year terms. A loss by Kelly would reduce the conservatives’ edge to 4-3 and give liberals a shot at gaining control in 2023, when Chief Justice Patience Roggensack will be up for reelection.
The April 7 general election coincides with Wisconsin’s presidential primary, which is expected to draw large numbers of Democrats to the polls. This puts Kelly, appointed by Republican Gov. Scott Walker in 2016 and heartily backed by President Donald Trump, at a distinct disadvantage. In late 2018 the Republicans who run the state Legislature tried moving the presidential primary to a different date, admittedly to improve Kelly’s chances, but were forced to abandon this effort under protest.
Kelly is an ultra-conservative with often extreme views. His application to Walker included a book chapter in which he inveighed against same-sex marriage and likened affirmative action to slavery. In one of many politically charged blog posts from 2012 to 2015, which he later removed, he blasted President Obama’s 2012 reelection as a win for the “socialism/same-sex marriage/recreational marijuana/tax increase crowd.”
Still, Kelly enjoys the advantages of incumbency and the ardent support of monied conservatives. His campaign rents office space from the state GOP, which also helped with his nomination papers. Asked in an interview for this article whether he thinks special interest groups like Wisconsin Manufacturers & Commerce, which have pumped millions of dollars into past state Supreme Court cases, ought to sit this one out, Kelly replies, “Why would they do that?” He likens the role of these groups to that of media outlets, adding “I am completely comfortable with people exercising their First Amendment rights.”
There’s a whole lotta exercising going on. In the nine contested state Supreme Court races since 2007, outside groups have invested more than $25 million, exceeding the $18 million spent by the candidates’ own campaigns, an analysis of data from Wisconsin Democracy Campaign shows.
Last year’s Supreme Court election, in which Walker appointee Brian Hagedorn beat liberal-backed challenger Lisa Neubauer, was, at nearly $8.3 million, Wisconsin’s costliest Supreme Court race ever. It was also the only high court election since 2007 in which the candidate who benefitted from the most spending — $4.9 million for Neubauer vs. $3.4 million for Hagedorn — did not win.
This year’s race, in which Kelly appears to have an early fundraising advantage, promises to be another high-spending affair. It is also likely to get nasty.
Kelly, following a playbook that conservatives have used, mostly successfully, in recent state Supreme Court elections, insists his personal beliefs have absolutely nothing to do with how he decides cases — even as he paints Karofsky, in particular, as being an out-of-control ideologue eager to bend the law to her liking.
“She’s been very vocal on her desire to see criminal justice reform,” Kelly says accusingly of Karofsky. In one case that is sure to be churned into 30-second attack ads, he alleges that Karofsky gave a purposely light sentence to a violent criminal in order to get him “back into the community that he had just victimized as soon as possible.”
Karofsky has declined to comment on this case because it is being appealed. But she does not deny her interest in being a reformer.
“I don’t think anyone can be in the criminal justice system for five minutes without thinking that it needs reform,” says Karofsky in an interview, citing the need to address racial disparities and employ treatment courts to deliver help and not just punishment.
But Karofsky denies bending the law to her will, noting that she often must do things as a judge with which she disagrees, such as not telling jurors that the drunken-driving defendant before them is a repeat offender. (Kelly says he also sometimes rules contrary to his beliefs but will give no examples, saying “I think it’s real important that jurists not talk about laws they like and laws they don’t like.”)
Karofsky notes that she is the only candidate in the race who has been a trial court judge, or who has worked as a prosecutor. This and her experience as a victims-rights advocate for the state Department of Justice allows her to see that applying the law is “not an esoteric exercise” but something that has real consequences for people’s lives.
Unlike Neubauer, who was so averse to admitting ideological leanings that she refused even to express support for reproductive rights, Karofsky says her values are generally in line with those who call themselves liberals or progressives. She says she believes in public education, workers’ rights, human rights, civil rights, and women’s rights, including reproductive health — and that “the climate crisis is real” and gun violence is a problem.
And as a former high school state tennis champion who has finished two Ironman triathlons and runs ultra-marathons of 50 miles, she asserts, “There is no way I’m going to let Dan Kelly outwork or outhustle me in this race.”
But to go head-to-head with Kelly, Karofsky must first get past Ed Fallone.
This is Fallone’s second bid for the state’s highest court; in 2013, he challenged Roggensack, losing decisively with just 30 percent of the vote. But he makes a credible argument that his election would bring much-needed diversity to the court, as a Hispanic with a unique blend of life experience.
“I never forget that I come from a working-class family, an immigrant family,” he told the gathering in Oregon. And while he lacks experience as a judge or as a lawyer who has argued cases in court, Fallone says his many years as a constitutional law scholar and prior work as a criminal defense attorney would bring needed qualities to the bench. He notes that many distinguished jurists, including Thurgood Marshall, Ruth Bader Ginsburg and former Wisconsin Justice Shirley Abrahamson, also lacked prior judicial experience.
“I am the most qualified candidate in this race,” Fallone contends, arguing that Karofsky’s experience is relatively narrow. He also says her tendency to “demonize” Kelly will not serve her well on the conservative-led court, whereas he would be able to win over conservative justices by pointing out the weaknesses of their positions in terms of constitutional law.
Fallone, who considers himself a progressive — which he defines as believing in a maximum amount of citizen participation in government — says he’s “known as someone who is absolutely committed to an independent and nonpartisan Supreme Court.” It’s a lovely thought, but one that is not likely to come to fruition anytime soon.
There is one big advantage that Fallone has over Karofsky, for voters focused on defeating Kelly: His lack of a judicial track record will make it harder for outside special interests to cherry-pick isolated cases in order to demonize him as soft on crime.
Both Fallone and Karofsky argue that Kelly is a conservative activist who has shown a disregard for precedent. In one 2019 case, the court essentially reversed itself on whether the state schools chief can set policy without getting permission from the governor just three years after having ruled the other way. Justice Ann Walsh Bradley, one of the court’s two liberals, noted in dissent that the only thing that changed between the two rulings was the ideological balance of the court.
Kelly says it is the proper role of the court to overturn precedent when a prior case was wrongly decided.
Both challengers also argue that Kelly’s performance on the court has been highly partisan. As Karofsky puts it, “Any time he has the chance to rule in favor of right-wing special interests or the Republicans, he does.” His approach to the law, she alleges, is “outcome-driven.”
Kelly denies this, but in his time on the court he has regularly sided with his conservative colleagues and taken stands congruent with a conservative point of view, such as a decision he authored in 2017 preventing the city of Madison from banning the carrying of concealed weapons by passengers on city-owned buses.
Asked to name any instance in which he ruled against conservatives or Republicans in his three years on the bench, Kelly cites a case brought by the Wisconsin Institute of Law & Liberty, a major conservative legal player on whose litigation board he once served. The court majority ruled against WILL, but Kelly and fellow conservative Justice Rebecca Bradley filed a dissent in which they rejected one of the group’s premises.
Kelly counts this as a case in which he ruled against WILL, even though it was only in part.
Daniel Kelly
Age 55, married, five children; lives in the village of North Prairie in Waukesha County.
Worked as an attorney in private practice. Past president of the Milwaukee Lawyers Chapter of the conservative Federalist Society. Appointed to the court by Gov. Scott Walker in 2016.
Endorsed by: President Donald Trump, Justices Rebecca Bradley, Brian Hagedorn, and former Justice David Prosser.
For fun: avid fisherman, some woodworking.
Jill Karofsky
Age 53, single mother of two, lives in Madison; mother Judy is former Middleton mayor. Served as a Dane County prosecutor, general counsel to the National Conference of Bar Examiners, and head of the state’s Office of Crime Victim Services. Elected circuit court judge in 2017.
Endorsed by: more than 60 state judges and about 100 state and local public officials.
For fun: “Being outside doing anything in the state of Wisconsin.”
Narayan Mahon
Ed Fallone
Age 55, married, two children. Has taught at Marquette law school since 1992. Worked for a Washington, D.C., law firm representing white-collar criminals. Served on board of Voces de la Frontera Action, the Latino Community Center, Centro Legal, and Catholic Charities legal services for immigrants.
Endorsed by: local officials including Milwaukee mayor Tom Barrett, 18 judges, and many community leaders.
For fun: live music and theater.
