Can Daley Beat Bradley for Supreme Court?
Challenger could get lots of right-wing money, but that may not be enough in this case.
Conservative talk radio host Mark Belling was at his nastiest in talking about Rock County Circuit Court Judge James Daley, who is running against incumbent Supreme Court Justice Ann Walsh Bradley in the April 7 election. Daley, said Belling, is “unfit to serve given his depraved view on plea bargaining and child abuse. It is Daley who decided to hand down a lenient one-year sentence to a man who savagely beat a young child… on the skull with a hammer. He’s a miserably rotten candidate who only a few weeks before declaring decided to slap on the wrist a monstrous child abuser.”
The Bradley campaign jumped on this, releasing an an ad that’s all about the vitriol in Belling’s voice.
Daley’s response was to accuse Bradley of using a victim “for political gain” and noting this decision “was executed with a number of challenging considerations, and… arrived at achieving the goals of sentencing.” Perhaps, but in campaign terms, it’s a weak response that doesn’t deny any of the specific details in the ad. Meaning we are going to hear this ad repeatedly. Though it looks like it may not be needed.
The Wisconsin Supreme Court is a veritable fortress for incumbents. In its 163-year history, through more than 121 elections, just two justices seeking reelection have been defeated. One was Samuel Crawford in 1855, after writing a controversial opinion saying the state must enforce the Fugitive Slave Act. The other loser was Chief Justice George Currie in 1967, who had joined an opinion saying it was legal for the Milwaukee Braves to move to Atlanta. Never a good idea to vote against the home team. (Another four justices in state history, including Louis Butler in 2008, were appointed to the court and lost their bid for election.)
Daley, after all, served in private practice and as a Rock County District Attorney before becoming a circuit court judge, and in 2013 was appointed chief judge of the 5th Judicial District. Daley also served three years in the Marine Corps, earning a Purple Heart and Bronze Star while serving in Vietnam, and followed that with 36 years in the Wisconsin National Guard, rising to Brigadier General.
In short, he seems like the sort of rock-ribbed, old-school conservative who could convincingly argue that Bradley is too liberal.
And certainly Bradley presents a softer image than a gung-ho Marine like Daley. She was a high school teacher before getting her law degree, she is the mother of four children, and in 20 years on the high court has tended to agree frequently with Chief Justice Shirley Abrahamson, who on most issues is the the court’s most liberal justice. The two agreed on 86 percent of cases in 2013-2014, 93 percent in 2012-’13, 87 percent in 2011-’12 and 88 percent in 2010-’11.
Daley has accused Bradley of being an “activist judge” and cites her vote to to overturn the laws requiring a photo ID for voters and Act 10, which largely eliminated public employee collective bargaining rights. Of course, Bradley also voted (in the minority) to overturn a lucrative increase in the state pension plan whose benefits were skewed to give the highest payout to veteran public servants like then-Governor Tommy Thompson. Also benefitting from the plan are supreme court justices, but Bradley voted to overturn the law and its pension hike, while four conservative judges voted to keep the law in place. In short, the issue of activism always cuts both ways.
Daley has also accused Bradley of being in bed with labor union, but in the past just 8 percent of any donations she received were from unions.
For her part, Bradley has hammered at the idea that she is a “fiercely independent” and “non-partisan” jurist. She was first elected to the high court in 1995 with bipartisan support, after beating candidates (and future Supreme Court members) Pat Roggensack and Patrick Crooks in a five-way primary campaign. Bradley notes that a Journal Sentinel story at the time said, “if she said it once she said it a thousand times, ‘keep partisan politics out of the judiciary.‘“
“I believed it then,” she adds, “and I believe it now.”
Bradley has criticized Daley’s close connection to the Republican Party, noting he accepted a $7,000 donation from the party, has appeared at GOP events and used the party to circulate his petitions. Daley says he’d also accept help from the Democratic Party if he could get it, but Bradley counters that judges should have no such connection to either party. “Never before have you seen” a political party paying for a judicial candidate’s campaign, she says.
Bradley has also argued that the court needs balance: “There must be room,” she says, “for more than one perspective, one voice, one view on the Supreme Court.”
Right now, the court has a 5-2 conservative majority. Lazy journalists often describe Crooks as part of a three-person liberal minority with Bradley and Abrahamson, but other than on a handful of high-profile cases, Crooks has voted with the conservative majority. He voted 88 percent of the time with the court’s conservative leader Roggensack in 2013-’14, 82 percent in 2012-’13, 71 percent in 2011-2012 and 84 percent in 2010-‘2011. (His agreement with the three other conservative judges was often even higher than that.)
If Daley is elected there will be a 6-1 conservative majority on most votes and Wisconsin will have one of the most right-wing high courts in America, along with those in states like Texas, Alabama and Idaho.
Perhaps for that reason, and because of Belling’s condemnation of Daley, there has so far been little outside spending in this race. The national non-profit, Justice At Stake, which tracks spending in judicial races, so far shows that Bradley has booked more than $220,000 in TV ads while neither Daley nor independent advocacy groups have booked one dollar of ads.
The first three of these groups are conservative (and in the past the Citizens for Strong America got all its funding from the Club for Growth). As I’ve previously reported, in the last four high court elections, all won by conservatives, Club for Growth and Wisconsin Manufacturers provided an incredible 76 percent of the money spent to support Justice David Prosser, 69 percent of Gableman’s support, 59 percent for Justice Annette Ziegler and 48 percent for Roggensack. Yet all four judges have declined to recuse themselves from a court case involving the John Doe investigation of alleged coordination between the Scott Walker gubernatorial campaign and the Club for Growth and Wisconsin Manufacturers.
The only possible chance for Daley to get elected would be through a multi-million dollar onslaught of ads for him from these two groups. And why should they bother? As the decision not to recuse by these four justices proves, the court has already been bought by conservatives. Bradley’s reelection won’t do anything to change this; Wisconsin will still have one of the most ethically challenged high courts in the nation.
As it turns out Daley was also one of the judges who approved the John Doe II investigation against Walker, as reporter Marie Rohde reveals in a timely story for Isthmus. This adds more evidence — now rather overwhelming — that the Doe investigation was anything but partisan.