Law & the Courts

The #Resistance Comes to a Wisconsin Supreme Court Election

(Alexei Novikov/Dreamstime)
Even Barack Obama and Eric Holder are getting involved.

It has been said that judicial elections are about as thrilling as playing a game of checkers by mail. But supreme-court elections in Wisconsin have been a bit more exciting. In 2011, the reelection of conservative Justice David Prosser was turned into a referendum on Governor Scott Walker and his controversial collective-bargaining reforms. The ensuing passion erupted into a brief physical altercation between two members of the court. More recently, an incumbent justice was subject to extraordinary personal attacks. Our supreme-court elections are what a political scientist might call salient.

And we’re at it again. Last week, former U.S. attorney general Eric Holder announced that he and President Obama are coming to Wisconsin in April to campaign. In a state-supreme-court election. What is it about a judicial election in Wisconsin that could warrant such attention?

The current race pits two left-of-center candidates, a lawyer named Tim Burns and Judge Rebecca Dallet, against one conservative, Judge Michael Screnock. Normally judicial candidates at least claim allegiance to the rule of law and deny that they would decide cases based on their political predilections. But not the liberal candidates in Wisconsin.

In an effort to compete for the Badger State’s #Resistance, Dallet and Burns have run like a pair of Sandernistas. Astonishingly, both have run ads attacking Walker and Trump. Although judicial races in Wisconsin are officially nonpartisan, Burns has identified himself as a Democrat and pledged to fight our “rigged economy.” Dallet has highlighted her support for the Affordable Care Act and federal efforts to reduce pollution in the Great Lakes — which she inexplicably (or, perhaps, revealingly) identifies as “civil rights” issues.

The play here is to capitalize on an energized Democratic base and to both take advantage of and advance a populist uprising on the left. Much of the attention has focused on Burns, a silk-stocking insurance lawyer whose candidacy seems focused on channeling his inner Che Guevara. He has described the idea that judges ought not tout their political views as — and I quote — “bulls***.” He’s made no secret of the fact that he’s a left-wing Democrat and will judge that way. He’s well-heeled and “woke.”

Milwaukee circuit-court judge Rebecca Dallet has attempted to portray herself as the “moderate” or “independent” in the race while signaling that her “values” are clearly on the left. In addition to opposition to President Trump, they include “a strong public education system, clean air and water, the rights of working people to organize,” and taking on “vestiges” the “racial and patriarchal system.” These are indeed “values,” but they are generally thought to be matters for the legislature and executive. To suggest that they ought to inform judicial decision-making is to suggest a significant expansion of the judicial role.

For decades, the principle project of the legal Left has been to establish that the law can “evolve” — it can become something else — in service of “progressive values” and solely on a judge’s say-so. Dallet has criticized the Wisconsin supreme court’s decisions to uphold the state’s famous “Act 10” — landmark changes restricting the collective-bargaining privileges of public employees — and to end the infamous “John Doe” investigation. Act 10, she says, infringed on the freedom of association. But courts have historically distinguished between the constitutional freedom of association and the statutory privilege of collective bargaining, which involves not merely association but a complicated set of legislatively created obligations and entitlements. To say otherwise might serve progressive values, but it would be a radical transformation of the First Amendment.

Judging is not entirely free of politics. But neither should it be primarily about politics.

The John Doe probe was halted, in part, because Wisconsin’s campaign-finance law lacked a constitutionally adequate definition of the activity to which it applied. Even if one takes a restrictive view of constitutional protection for campaign speech, courts have traditionally insisted that even otherwise permissible limits on freedom of speech be set narrowly and clearly defined. To say otherwise would also be a departure from well settled principles.

Judging is not entirely free of politics. But neither should it be primarily about politics. In Wisconsin, it appears that a line is being crossed. If it works — if judicial candidates can win by making naked political appeals — we can expect to see more of the same.

Rick Esenberg is the president and general counsel of the Wisconsin Institute for Law & Liberty. The views expressed here are his own.

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