According to one exit poll, 70 percent of respondents said the U.S. Supreme Court was an important factor in their vote for president in 2016. Yet the importance of state courts often gets overlooked, even though they handle more cases than federal courts and have the final say on the interpretation of state constitutions. Hence, the men and women who fill state court seats have an arguably greater impact than federal judges on the day-to-day lives of the American people.
Perhaps no governor in America has taken his responsibility to select state judges as seriously as Wisconsin’s Scott Walker.
Wisconsin voters choose their judges in non-partisan spring elections. When a judicial vacancy is created during a judge’s term, the governor has the power to appoint a replacement to serve until the seat comes up for re-election. So what does Walker look for in a judge? In addition to excellence as an attorney and sound character, Walker’s main criterion for selecting judges is a proper judicial philosophy. He wants judges who “adhere to the rule of law and have a commitment to a textualist, and originalist, judicial philosophy.” He has railed against activist judges who see the Constitution as a living document in need of constant tinkering.
Many governors pay lip service to judicial philosophy while ignoring it once decision time comes. New Jersey’s Chris Christie, for example, once promised to put Scalia-types on the bench, but instead ended up appointing “liberals and cronies,” according to Carrie Severino of the Judicial Crisis Network.
By contrast, upon taking office in 2011, Walker issued an executive order quoting Federalist No. 78, which created a judicial-selection advisory committee composed of conservative attorneys to help him with appointments. To run the committee, he tapped former judge Michael Brennan, a highly respected litigator and co-founder of the Milwaukee Lawyers Chapter of the Federalist Society, a national conservative and libertarian legal organization
In his seven years as governor, Walker has made 70 judicial appointments. Nowhere has Walker’s impact been felt more keenly than on the Wisconsin Supreme Court. Due to a death and a retirement, Walker has made two appointments thus far:Rebecca Bradley in 2015 and Daniel Kelly in 2016. Both justices are young, spent a significant amount of their careers in private practice, and served as past presidents of the Milwaukee Lawyers Chapter of the Federalist Society.
In looking at some of Bradley’s and Kelly’s early opinions, it appears that Walker gave the state two strong judicial conservatives who are not afraid to stand on principle and ruffle feathers.
Conservatives across the country should take note that 80 percent of Walker appointees who run for re-election have been successful in keeping their seats.
For example, in Operton v. Labor and Industry Review Commission, Justice Bradley — joined by Justice Kelly — wrote a concurrence sharply questioning the state supreme court’s long-term practice of giving deference to administrative agencies’ interpretations of statutes, Wisconsin’s version of so-called Chevron deference. Bradley wrote that, “The doctrine of deference to agencies’ statutory interpretation is a judicial creation that circumvents the court’s duty to say what the law is and risks perpetuating erroneous declarations of the law,” and “urge[d] the court to reconsider its decades-long abdication of this core judicial function.”
In a major property-rights case, Milewski v. Town of Dover, a town denied two homeowners the right to challenge their property-tax assessment because they objected to government assessors’ entering their home. Represented by the Wisconsin Institute for Law & Liberty, the homeowners took the case to the state Supreme Court. Last month, Justice Kelly authored the lead opinion in Milewski, joined by Justice Bradley, holding that the town’s actions were a clear constitutional violation. Justice Kelly wrote that the homeowners “suffered an abridgement of their Fourteenth Amendment rights solely because they exercised their Fourth Amendment rights, which is a real and immediate constitutional injury.” This opinion serves to protect private property — a central concern of the Founding Fathers.
In a gun-rights case, Wisconsin Carry, Inc. v. City of Madison, the court held that the City of Madison could not ban firearms on city buses because, according to Justice Kelly, it violated the state’s concealed-carry law. And in a case about government immunity, Melchert v. Pro Electric Contractors, Justice Bradley in dissent rightly criticized precedent that went well beyond the text of the applicable statute to grant immunity to government officials when they act with “discretion,” a standard so broad as to immunize virtually all government conduct.
What is most remarkable is that, while Walker and his legal team have nominated two excellent justices to the Wisconsin Supreme Court, they apply an equally rigorous screening and interview process to prospective lower-court appointments. In fact, the Governor has personally interviewed all of his judicial appointees.
This has created a ripple effect throughout the judiciary that has put Walker on course to lock in a judicially conservative state court for a generation. He has appointed nearly 40 percent of all the sitting judges on the Court of Appeals. In 2015 he appointed Michael Screnock to the Sauk County Circuit Court. Judge Screnock recently announced he is running for an open seat on the Wisconsin Supreme Court next year. And Michael Brennan, who runs Walker’s judicial-selection committee, was recently nominated by President Donald Trump to a seat on the United States Court of Appeals for the Seventh Circuit.
Conservatives across the country should take note that 80 percent of Walker appointees who run for re-election have been successful in keeping their seats. This shows that the rule of law and fidelity to the Constitution are of paramount concern to voters.
Walker, who is eying a third term in 2018, rose to national prominence when he battled public-sector unions in 2011. While this no doubt cemented his reputation as a fiscal conservative, his impact on the Wisconsin judiciary will be an equally important and lasting part of his legacy.
—CJ Szafir is executive vice president at the Wisconsin Institute for Law & Liberty. Matthew Fernholz practices civil litigation at a law firm in Waukesha, Wis.