Commentary

The organized takeover of Wisconsin courts

How big money has eroded a core democratic institution

July 29, 2021 7:00 am
Wisconsin State Supreme Court entrance

Photo by Mike Steele | Flickr CC BY 2.0

It barely rated a mention in the news when, on June 28, the Wisconsin Supreme Court issued an order relieving Court of Appeals Chief Judge Lisa Neubauer of her leadership duties. 

Neubauer ran for the Supreme Court in 2019 with the support of Democrats and progressives, in an election won by a razor-thin margin by conservative Justice Brian Hagedorn. 

The bland-sounding order ending her tenure as chief judge made it seem as though, since Neubauer’s second term had expired, after six years of service, replacing her was a routine matter. The new chief judge, William Brash, will start on August 1, the Court announced.

But, in an email objecting to Neubauer’s removal, Justices Ann Walsh Bradley, Rebecca Frank Dallet and Jill Karofsky pointed out that “never before has this court limited the number of terms that can be served as Chief Judge of the Court of Appeals.”

Judge Lisa Neubauer | judgeneubauer.com
Judge Lisa Neubauer | judgeneubauer.com

Nuebauer’s predecessor served eight years as chief, and each of the two chief judges before him served nine years, the justices added in their email. They also objected to “the timing and lack of process employed by a majority of this court in the appointment process” and said they had not had an opportunity to weigh in.

“It sort of smells like retribution, doesn’t it?” says a source close to the Court.

For the general public, it wasn’t a very big story. Most people didn’t even know there is such a thing as an appeals court chief judge. It’s not a particularly powerful position; the chief mainly deals with handling the court’s budget and other administrative matters.

It's not how we want democratic institutions to work. It’s a little Banana Republic-y.

– Attorney Jeffrey Mandell

But from the point of view of some legal experts, Neubauer’s removal was a bad sign — part of an insidious pattern of politicization of Wisconsin’s courts. 

Lawyers and other judges describe Neubauer as hardworking, courteous and an effective and efficient chief judge. Her removal raises questions about the way the courts are run, says Jeffrey Mandell, a Wisconsin attorney and founder of the progressive firm Law Forward. Mandell has never appeared before Neubauer or her appointed successor, Brash, and says he has no reason to doubt that Brash will do a good job as chief judge. Still, he says, “It does start to look less like a policy decision and more like some sort of personal issue, which is not how we want democratic institutions to work. It’s a little Banana Republic-y.”

Jeffrey Mandel headshot
Jeffrey A. Mandell

Mandell sees Neubauer’s demotion as part of a pattern of lack of transparency that includes the court’s failure to set clear rules of recusal when justices have conflicts of interest, and its move to stop holding public meetings on administrative matters, including ethics and recusal, shrouding the court’s business in secrecy. 

Banana Republic-y is also a good description of Justice Rebecca Bradley, who compared Gov. Tony Evers’ stay-at-home order during the pandemic to the internment of Japanese Americans in World War II. She also recently diagnosed her colleagues with “‘hoplophobia’ — i.e. an irrational fear of guns,” after they sanctioned a Winnebago Co. judge who pulled a loaded Glock pistol out from under his robes during a court hearing. 

How did we get here?

The court has never resolved — or recovered from — the embarrassing 2011 incident in which then-Justice David Prosser was accused of trying to choke his colleague Ann Walsh Bradley in her office during a dispute about Wisconsin’s epic battle over collective bargaining rights. That sordid affair came to symbolize the decline of our state’s democratic institutions. 

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But the erosion of the Wisconsin Supreme Court’s reputation goes back at least to 2008, when Michael Gableman defeated Wisconsin’s first African American supreme court justice, Luis Butler, in a campaign that made national news for its sheer ugliness — Gableman ran misleading Willie Horton-style ads against Butler — and for the flood of out-of-state money that poured into the race. Outside groups spent $4.8 million — a record that was not broken until this year.

The ideological makeup of the court flipped to a 4-3 conservative majority when Gableman, who had the backing of rightwing and pro-corporate groups, replaced Butler. 

Gableman refused to recuse himself from cases involving his campaign contributors and helped usher in an era of ethical laxness on the court. He and his colleagues worked to undermine the late, distinguished Chief Justice Shirley Abrahamson, who was pushed out as chief, her tenure ended prematurely by a referendum put forward by Republicans that allowed the justices to elect their own chief instead of appointing the chief based on seniority. Conservatives on the court chose Patience Roggensack as their new chief.

Nobody is seeing the urgency because it’s a lot of small potatoes stuff. But it still adds up to a larger, disturbing picture.

– Retired Dane County Judge Richard Niess

A few years later, the same justices chose to name the state law library after Prosser (who once made the news when he called Abrahamson a “bitch” and said he would “destroy” her) — not the late Abrahamson, who, unlike Prosser, was considered for the U.S. Supreme Court and widely regarded as one of the country’s great legal minds.

Judge Richard Niess | Dane County Circuit Court
Judge Richard Niess | Dane County Circuit Court

“A lot of it is inside baseball,” retired Dane County Circuit Court Judge Richard Niess says of the way the current court conducts its business. “Nobody is seeing the urgency because it’s a lot of small potatoes stuff. But it still adds up to a larger, disturbing picture.”

That larger picture is a push to remake Wisconsin courts by moneyed interests. Former Republican Gov. Scott Walker helped that effort along when he appointed three Supreme Court justices who were members of the Federalist Society — Daniel Kelly, Rebecca Bradley and Brian Hagedorn. The Federalist Society is arguably the most powerful legal organization in the country, made up of conservative and libertarian lawyers and formed in the early 1980s to fight “liberal orthodoxy,” and, according to its homepage, dedicated to “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.” The group has chapters of law school students, faculty and practicing lawyers around the country and deep ties to the U.S. Supreme Court. It is also part of a nationwide network aiming to create more conservative, pro-corporate courts that has poured money into Wisconsin. “All of this is the national scene writ on a smaller stage,” says Niess.

In 2016, Craig Mastantuono, president of the American Constitution Society for Law and Policy’s Milwaukee chapter, told the Wisconsin State Journal that the Federalist Society is engaged in “an organized takeover” of state and federal judiciaries. The effect, he said, is that big business and the wealthy will benefit from decision making in the courts.

Justice Brian Hagedorn
Justice Brian Hagedorn

Controversy around the Federalist Society’s influence in Wisconsin erupted in 2018, when Brian Hagedorn, then still an the appeals court judge, sent an email to judges around the state encouraging them to attend a Federalist Society conference and indicating that mileage and meals would be reimbursed by the state as well as offering continuing legal education credits to lawyers who attended.

Fifteen Wisconsin judges wrote to Hagedorn and the state’s judicial education committee in protest. Niess was among them.

Niess also sees Chief Justice Patience Roggesack’s pilot program in Dane County to create a separate, business court as part of a dangerous rightward drift. “Special business interests now collaborate with our Chief Justice to hand pick those judges they want to decide their cases,” he wrote in an email to local lawyers. “The Dane County Circuit Court will now be required to implement a two-tiered system of justice; one for the privileged few and one for the rest of us.”

Mandell takes a more sympathetic view of the concept of the business court, saying he understands the logic for his business clients of separating forums for different types of lawsuits. Still, he agrees with Niess about a general erosion of democracy in Wisconsin courts.

The power of a shadowy network of rightwing groups working against the public interest is evident in the coordinated effort to undermine public health orders during the pandemic by taking cases against them to the Supreme Court.

AJL is actively working to track and support right-wing legal challenges to upend COVID-19 health restrictions, fight workers’ rights to unionize, and coordinate legal strategies

– Center for Media and Democracy

Earlier this year, the Center for Media and Democracy reported on a new rightwing legal center called American Juris Link that is “actively working to track and support right-wing legal challenges to upend COVID-19 health restrictions, fight workers’ rights to unionize, and coordinate legal strategies”

The group was “incubated by the State Policy Network” — a network of rightwing think tanks in all 50 states — CMD reported. Its founder and president, Carrie Ann Donnell, is the director of the Federalist Society’s pro-bono center.

The Wisconsin-based Bradley Foundation provided American Juris Link with $100,000 in start-up funds in 2020, and CMD identified the Wisconsin Institute for Law & Liberty (WILL) among the recipients of the group’s assistance.

Not only does the Bradley-financed Wisconsin Institute for Law & Liberty continually file lawsuits seeking to champion rightwing interests in the courts, a parallel effort, funded by the same group of allies that supports WILL, is transforming those courts into a friendlier forum for such lawsuits. 

The tool for transforming the courts is money. As the Wisconsin Democracy Campaign’s former director Mike McCabe pointed out back in 2008, after the Gableman race opened the floodgates to cash in state court races, buying state supreme court seats is a relative bargain, compared with congressional races. And much of the business that concerns corporations, including environmental regulations and labor protections, happens at the state level.

Thus, the Republican State Leadership Committee poured more than $1.2 million into last-minute ads to help Hagedorn beat Neubauer by less than 1% of the vote in 2019. The Republican State Leadership Committee also spent heavily to help elect Rebecca Bradley.

“Wisconsin is not the only state where RSLC is flexing its multi-million-dollar muscle to place corporate-friendly or right-wing judges on state courts in order to advance its funders’ interest,” CMD’s Lisa Graves writes, reeling off spending on court races in Arkansas, West Virginia, Ohio, Illinois, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania and Tennessee.

Predictably, in recent years the influx of outside money has been making Wisconsin judicial races more and more expensive, according to data collected by the Wisconsin Democracy Campaign. Candidates and outside special interest groups spent a record-shattering $10 million in the last Wisconsin Supreme Court race in April 2020, the Democracy Campaign reported. 

And it has become an arms race, with money pouring in on both sides.

Judge Jill Karofsky (via Jill for Justice)
Judge Jill Karofsky
(Photo: Jill for Justice)

Top outside spenders in the latest Supreme Court race were A Better Wisconsin Together Political fund, which spent $1.87 million, mostly on ads supporting Karofsky, Wisconsin Manufacturers and Commerce, which spent $1.1 million to help Walker appointee Daniel Kelly (mostly with anti-Karofsky ads), the Republican State Leadership Committee, which spent $897,499 on Kelly, and Americans for Prosperity, which spent $479,463 on Kelly.

Karofsky, who won, set an all-time record for spending by an individual candidate at $2.7 million. And there is no end in sight.

“The 2023 election is absolutely critical,” says Neiss. “A lot of outstate money will come in on both sides.”

As a judge, I was not at liberty to freely comment on these disturbing trends without the potential for retribution from the Court

– Retired Dane County Judge Richard Niess

Niess says he became frustrated and decided to retire, in part, due to the “increasing threats to the integrity and independence of the Supreme Court by overt and covert right wing influence over its legal decisions and operating procedures.”

“The mounting secrecy surrounding the Court’s operating procedures, the sneaky imposition of the unnecessary business court on Dane County by the chief justice, and the clandestine manner in which the highly respected Judge Neubauer was summarily sacked as chief judge, are just three examples,” he says.

Outside group spending in Wisconsin Supreme Court races

2003: Ed Brunner vs. Pat Roggensack $27,200

2007: Linda Clifford vs. Annette Ziegler $3.1 million

2008: Louis Butler vs. Michael Gableman $4.8 million

2009: Shirley Abrahamson vs. Randy Kschnick $577,000

2011 David Prosser vs. JoAnne Kloppenburg  $4.5 million

2013 Pat Roggensack vs. Ed Fallone $1.2 million

2015: Ann Walsh Bradley vs. James P. Daley $171,000

2016: Rebecca Bradley vs. Janne Kloppenburg $3.43 million

2018 Rebecca Dallet vs. Michael Screnock $2.8 million

2019: Brian Hagedorn vs. Lisa Neubauer $4.5 million

2020: Jill Karofsky vs. Daniel Kelly $5 million

source: Wisconsin Democracy Campaign

Niess also had a run-in with the Wisconsin Supreme Court in 2014 when the Court ordered him to dismiss a challenge to the voter ID law by the League of Women Voters. He refused, instead recusing himself, writing that he believed following the court’s order would violate his oath to uphold the state constitution. He then was threatened with sanction in an unsuccessful complaint before the state Judicial Commission.

“As a judge, I was not at liberty to freely comment on these disturbing trends without the potential for retribution from the Court,” he says.

To Wisconsin attorney Dean Strang, the biggest loss to Wisconsin courts as they become increasingly politicized is not so much ideological as it is a more general decline of integrity.

“The consistent media fallacy in discussing the Wisconsin Supreme Court is that there is a liberal minority on it. There is not,” he says. “There is a conservative, often retrenching, majority. And then there is a moderate, pragmatic minority.”

Conservatives and reactionary populists have shifted the ideological spectrum so far to the right that mere moderation now is mistaken as a leftist threat

– Attorney Dean Strang

After Abrahamson, “the court no longer has any liberal voice at all,” he says.

He sees the media shorthand, citing “liberal” and “conservative” justices, as part of a broader, dispiriting trend. “Conservatives and reactionary populists have shifted the ideological spectrum so far to the right that mere moderation now is mistaken as a leftist threat,” he says.

The proxy partisan warfare in court races has also endangered intellectual honesty and the unbiased assessment of the facts — hallmarks of a good appellate judges, Strang adds. 

That’s not to say that he agrees with doctrine of “originalism” promoted by the Federalist Society, which he describes as “the claim that judging is like archaeology: that judges simply dig carefully through books until they ‘find’ the law, as if it were some buried shard of ancient pottery.”

Instead, a good judge is like an architect, he says, constrained by the text of the law and by precedent the same way an architect is constrained by the laws of physics and engineering, and using the facts of a case “as the site for a construction of law that features the highest ideals that our constitution and legal culture profess.”

Instead, our current judicial system seems to be moving in the opposite direction, digging for money, eyes on the ground.

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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal. She lives in Madison, Wisconsin with her husband and three daughters.

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