In their first debate the three candidates for Wisconsin Supreme Court laid out radically different approaches to the law.
Dane County Judge Jill Karofsky wasted no time in attacking incumbent Justice Daniel Kelly. In the opening moments of the debate, Karofsky declared, “I find it amazing that we have a justice on the Supreme Court who has been supported by right-wing special interests … and every time he’s made a decision on the Court he’s made it in favor of those groups.”
In his rebuttal, Kelly said, “Unlike Judge Karofsky, I don’t judge the outcome of a case according to a political lense.”
Meanwhile Kelly’s other challenger, Marquette University Law School Professor Ed Fallone, struggled to get into the argument. “Would someone please mention my name?” he said during the back and forth between Karofsky and Kelly. When the moderator, journalism professor Michael Wagner of the University of Wisconsin-Madison, refused to let him break into an exchange, Fallone, who was seated between the other two candidates, said, “I feel like I’m the net in a badminton game.”
Karofsky was referencing a $1,000 contribution Kelly received from a board member of the Wisconsin Institute for Law and Liberty (WILL) one week before ruling in the group’s favor in the Koschkee v. Taylor decision, which overturned precedent to hold that the state superintendent of public instruction may not issue rules without written approval from the governor. WILL argued the case before the court. Kelly received another $1,000 contribution from another WILL board member three days after the decision.
“That feels like corruption to much of the State of Wisconsin,” Karofsky said.
Fallone disagreed with the idea that undue outside influence was the problem. The problem with Kelly, he said, is: “He thinks he’s a one-man constitutional convention.” Kelly’s practice of viewing every case as a new opportunity to decide whether a law is constitutional, without regard for long standing precedent, creates instability, Fallone said. “You are alone in your vision of originalist intent,” he told Kelly, adding “not a single precedent is safe.” That approach, Fallone said, “makes the judiciary a force for destabilization.”
Defending his approach, Kelly pointed out that Plessy v. Ferguson and the separate-but-equal doctrine would still be the law of the land if judges were unwilling to overturn precedent. “My reference point is always the law, not what we have previously said,” he added, calling it “kind of a curious proposition” that justices not apply the constitution to their decisions.
Karofsky joined Fallone in his criticism of Kelly’s originalist approach, saying it “completely erodes predictability and stability in our judicial system.”
She added that Kelly and his colleagues in the Court’s conservative majority have taken to ignoring process, plucking a case from the lower courts that involved the legislature’s move to take away powers from the governor and attorney general in the lame-duck session, and indicating that they will do so again in a case that involves curtailing the governor’s veto powers. “They don’t follow process because they’re so eager to get a result,” she said.
Asked under what circumstances judges should recuse themselves, Karofsky criticized the Supreme Court for refusing to promulgate a rule on recusal, and continuing to hear cases involving their own political donors. She would gladly follow a recusal rule, she said. Kelly said the people must select justices whom they trust to make good decisions about when to recuse themselves.
Kelly declined to give an example of a case in which he interpreted the law in a way that ran counter to his own personal or political beliefs. “It’s important that we not talk about our personal beliefs,” he said.
Karofsy offered the example of cases in which she required defendants to submit DNA samples to the government after they are convicted of simple possession of marijuana — a practice she is personally opposed to, but upholds nonetheless.
To questions about the climate of incivility on the court, Kelly said he was concerned about stories of rancor among the justices after he was appointed to the court by then-Gov. Scott Walker in 2016, but that he has seen “healing.” “We have regained that stature that we had before of a collegial court,” he said.
Karofsky said she has been a “consensus-builder” throughout her career.
Fallone lamented the politicization of the court, saying “we’ve lost our way,”
“We used to have a Supreme Court we were justifiably proud of,” he said, arguing that his experience as a constitutional law professor would bring a needed change in perspective.
In closing remarks, Fallone argued that the justices on the Supreme Court should represent a broader cross-section of the public. He would be the first Latino justice on the court, he noted, and the first defense attorney to serve on the Court in 10 years, bringing a different point of view to the Court.
Kelly said that Karofsky lacks experience outside criminal law, and noted his own breadth of experience representing a variety of clients in different types of lawsuits.
Karofsky said Kelly “doesn’t like saying who his clients are … Scott Walker, the Republican Party, and conservative think tanks.”
The three candidates will be on the ballot in a February 18 primary. The top two finishers will advance to the April 7 general election.
Correction: an earlier version of this story incorrectly stated that Ed Fallone worked as a public defender as opposed to a private defense attorney. It also misstated the date of the general election, which is April 7 2020. We regret the error.