Lawyers Grill Supreme Court Candidates

A standing-room-only crowd of nearly 100 attorneys heeded the summons of Judge John J. DiMotto to convene at the offices of the Milwaukee Bar Association Wednesday, January 27th at noon.  The purpose was to hear oral arguments from three candidates vying for a seat on the Wisconsin Supreme Court. The three were to testify in open session as to why each, and not the other, should be elevated to that august dignity, so help them God.

The matter was captioned “2016 Supreme Court Candidate Forum” and is the latest in a series of such judicial events held for over a quarter of a century.

DiMotto presided as facilitator of the proceedings. His clerk was Steven Walters, the Urban Milwaukee columnist, and head of Wisconsin Eye, a service that broadcasts state legislative activity. Walters was deputized to read questions that had been submitted and vetted by DiMotto. Walters also served as a bailiff, maintaining the order and integrity of the proceedings and limiting each candidate’s response to the allotted two minutes.

Since there were no gavels or choking hazards in the room, the situation seemed secure for participants and attendees.

The three candidates having been called forth, they were seated at a common table facing the audience. They were:

Rebecca Bradley, Wisconsin Supreme Court (incumbent)
Joe Donald, Milwaukee County Circuit Court
JoAnne Kloppenburg, Wisconsin Court of Appeals District IV

“The seating arrangement couldn’t be better,” said Donald, who was at the center of the table. “I have one candidate to my right,” he said, acknowledging Bradley, and “one on my left,” he said, with a nod to Kloppenburg. The audience forgot the decorum of the proceedings and indulged itself in a brief laugh at the witticism.

All three were there to affirm their freedom from ideological bias and their imperviousness to party influences and potentially limitless funds to be spent by others on their behalf, like it or not.

And their devotion to the principle of “collegiality” made it seem as if they were pledges hoping to join a particularly jolly buddy club.

Curriculum Vitae

The candidates offer a mix of backgrounds and experiences.

• Rebecca Bradley, a native Milwaukeean, was appointed to the Supreme Court by Gov. Scott Walker in October 2015 to fill the vacancy created by the death of Justice Patrick Crooks, who had announced he planned to retire at the end of the term. She is the incumbent; neither of her opponents submitted their names to the governor for consideration. This may be because Walker has shown a tendency to appoint Bradley to open seats on the bench. The governor appointed Bradley to the State Appeals Court Branch 1 in May 2015 to fill a vacancy caused by the death of Judge Ralph Adam Fine. In 2012, he had appointed Bradley to an open seat on the Milwaukee County Circuit Court, to which she was later elected. She was a UW Law School graduate, and a Marquette University grad. She has been associated with Republican law groups and the Federalist Society. The National Review applauded her appointment.
• Martin Joseph “Joe” Donald is a Marquette University and Marquette Law School graduate and has been a circuit court judge since 1996, which he says is “three times more experience than his opponents combined.” Also a Milwaukeean, he grew up in Shorewood.
• JoAnne Kloppenburg has been on the appeals court since 2012 after serving as an assistant attorney general from 1989-2012. She is a UW Law School graduate, and also holds degrees from Yale and Princeton universities. She lost a close Supreme Court race to Justice David Prosser in 2011 in what was seen by some as a referendum on Act 10 and the Walker administration.

Candidates Tell Their Stories

The candidates were each given two minutes to offer opening statements.

Bradley said she “felt called to represent the people of Wisconsin as a member of the judiciary.” She deems herself ideally suited to look at the law objectively and dispassionately. Some look at the law for “what they wish it to be,” not for what it is, she lamented. Collegiality is important, she said, promising that she has always gotten along with colleagues — even adversaries. She credits this to her “excellent judicial temperament.” She earnestly swore to run a “non-partisan campaign.”

Kloppenburg said she had been to all 72 counties running for the seat. This is a “very important election” that will decide “the future of the court.” She is running for the court because “I want to stand up to partisan politics and special interests” that she says threaten the court. To heck with the special interests — her interest is “the interest of all of the people in Wisconsin.” She envisions a system of justice where “the outcome of a case is not a foregone conclusion,” and threatens to run “a strong grassroots campaign if necessary.”

Donald was delighted to be at the forum, he said. He was the first college and law school graduate in his family, and he invoked the memory of his mother in his remarks.  She would, he said, be proud to see him in such a forum. He said his opponents had yet to talk about the biggest issue facing the court. That is “integrity in our court,” he said.

“Politics has changed the whole process of how we elect” the court. This was an apparent reference to elimination of campaign finance regulations, and systemic changes in the operation of the court itself, including a new method for selecting chief justices.

“This race … is vital to the future of the court.”

On “Collegiality”

The forum next proceeded to questions. The first, somewhat predictably, dealt with the “perception of a lack of collegiality on the court.”

All candidates promised to be at their friendliest best whether in open session, or at their closed-door chats after oral arguments. Not a single one made a move to choke an opponent, and I checked to make sure nobody was getting kicked under the table. All good.

Kloppenberg attested to her collegiality by emphasizing her inexperience. “I was appointed chief after only three years on the bench,” she said of her elevation to head judge of the 4th Appeals District Court last year.

Donald looked at the matter in the negative, saying he felt that “politics infiltrated our Supreme Court to the extent that the justices in my opinion may not even be talking to each other.” He offered a rallying cry: “It is our court. It is not Governor Walker’s court … it is not the Club for Growth court. It is the peoples’ court.”

Bradley responded by redirecting the issue. “I believe the issue is collegiality,” she said. “I mentioned collegiality in my opening remarks.” Indeed she did.

Bradley, the only one among the three to actually be a member of the state’s highest court, pulled back the blindfold that hid from the others a view of the proceedings in camera.

“I am very pleased to say each of my colleagues welcomed me warmly to the court,” she said. “We have a little go-around after arguments,” she added, conjuring up an image of burnished mahogany panelling, red leather Chesterfield sofas, a crackling fire, vintage Port and aged Stilton as the setting for a colloquoy worthy of Oliver Wendell Holmes and Charles Evans Hughes. Such gatherings, she said, “are a very collegial and positive experience for me.”

PAC Money Addressed

The candidates were asked if they would accept PAC money or contributions from political parties for the non-partisan seat. Kloppenburg said she would accept PAC money, and any funds donated legally. She would not accept money from what she called “partisan political parties,” which are surely the worst, albeit the only kind. She also noted she was the only one at the table who had first been elected — not appointed to her seat. The implication is that an appointment may entail a political favor.

The question was a moot point to Donald. “Nobody’s offered me PAC money,” he said.

He admitted he had first been appointed to his seat on the bench. “Yes, I was appointed by Governor Walker,” he said. At that moment a chorus of voices yelled out “NO!”

“I was appointed by Governor Thompson,” Donald corrected himself, referring to former Republican Gov. Tommy Thompson. Looking at Bradley he said, “I was thinking of you.” Walker had appointed Bradley to a judgeship “three times,” he reminded the audience.

“Show me a lawyer who is a friend of the governor, and I’ll show you a judge,” he joked.

Bradley did her “I believe the question was …” bit again. She would be happy to receive help and support and speak to any group.

Recuse Me!

This being by nature a professional forum, some of the questions dealt with court administrative issues, procedural questions and matters beyond the scope of interest of the general voter, but of vital import to members of the bar.

The subjects included “recusal” and “expungement.” The topics are broader than they may at first seem.

Currently Supreme Court justices need not explain their reasons for recusing themselves from a case. Donald said he would state his reasons publicly in any instance of a genuine or apparent conflict of interest.

Bradley said the recusal issue is worst for newbies on the court, since they may bring with them a history of cases in which they were involved as a party or attorney. To disclose the reasons for a recusal, she said, may in some cases lead to a violation of a client confidence, the integrity of which is the legal profession’s Holy Grail.

Bradley did note that she could “not sit on any Supreme Court case that I handled in appeals court.”

I went through several dozen appeals case decisions issued during Bradley’s four month stint on the court and, remarkably, did not find her name on any decision rendered from June to the end of the year, so her appeals court caseload should not occasion many recusals should she be elected.

Kloppenburg said some cases might require a reason for recusal, while others might not. It is a case-by-case matter, she said.

She alone offered a possible solution: “The problem is we have subjective standards [for recusal]. We need objective standards. The entire set of recusal rules” merits review, she said.

On Expungement

The issue of expungement of criminal records in certain instances was addressed by the panel. There was rare bipartisan agreement that issues of incarceration and post-sentence status of the guilty merits study and perhaps change.

Bradley said she “would defer to the Legislature,” for whatever that body would decide about expungement.

Kloppenburg noted that the way the statute is written now, the judge must exercise the expungement of records option at the moment of sentencing. Better, she said, that the judge retain that discretion until the end of probation. In general, she said, she favors “more sentencing discretion for Circuit Court judges.”

For Donald, this is a heart and soul matter. Wisconsin has “more African American males incarcerated [per capita] than any other state,” he said. This is a huge group of individuals who will spend their lives outside of a chance for opportunity, due to their criminal records. They will not be able to benefit from the fruit of their labor, he said. “It is only right and only fair,” to increase the availability  of expungements, he said.

In Closing

The candidates were invited to give brief closing remarks.

Bradley said she would “apply the law as written by the legislature.” She said that once on the bench she found that “my decisions were writing themselves.” Interesting. Finally the discussion gets around to Andre Breton’s theory of Surrealist Automatism, and then, alas, her two minutes are up.

Kloppenburg said she had received support from across the board, including former Rep. Dave Obey, and House Confidential honoree Vel Phillips.

Donald quoted Martin Luther King saying “The arc of the moral universe is long, but it bends towards justice.” He said he was running “to stand up to the abuses of the Legislature and Executive branch.”

Fashion Notes

Bradley wore her brownish-blond hair long. It swept her shoulders. She wore black trousers and a gray lapel jacket over a blue, open-collar, button-down Oxford shirt. Without a tie, her outfit conveyed the look of Casual Friday at Whyte Hirschboeck, the law firm where she formerly was employed and was a shareholder. She wore a sparkling ring on her third right finger, and a sensible stainless steel watch on her left wrist. Her feet were in black pumps with thin, although short, high heels.

In contrast to Bradley’s flowing locks, Donald had no hair. Some areas had been closely cropped, while others apparently no longer require the attention of brush, comb or scissors. He wore a simple band of gold on a finger, and was dressed in a black suit. Like Bradley, his shirt was button-down Oxford blue, quite possibly from one of the racier collections at Brooks Brothers. His tie was mauve with a light gold relief.

Kloppenburg had a bushy bouffant of curly dark hair. She wore a long sleeved grey sweater with a curled lapel over a magenta blouse that matched her rouged cheeks. A modest pendant dangled from her neck. Each arm bore a ringlet of silver as a bracelet. Her left hand bore two rings — one on the third finger, and one on the index, or Jupiter finger. Her heels were every bit as high as Bradley’s, but were considerably stouter.

All would be happy to cast aside their raiment for a simple robe of black.

Forum to be Broadcast

It was the intention of Wisconsin Eye to broadcast the proceedings live, said Steve Walters. However, the Milwaukee Bar Association lacked sufficient bandwidth to do so he said. The program should be available on its website by Thursday, he said.

Photos from the Event