Bruce Murphy
Murphy’s Law

Can Daley Beat Bradley for Supreme Court?

Challenger could get lots of right-wing money, but that may not be enough in this case.

By - Mar 26th, 2015 01:37 pm
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Supreme Court Justice Ann Walsh Bradley, and Rock County Circuit Court Judge James Daley.

Supreme Court Justice Ann Walsh Bradley, and Rock County Circuit Court Judge James Daley.

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.)

Still, the advent of a massive advertising by business-oriented groups like the Wisconsin Manufacturers and Commerce has helped alter the odds and boosted a little known, mediocre judge, Michael Gableman, over Butler in 2008. So you might imagine that Daley, a far more qualified candidate than Gableman, would have a decent chance of toppling Bradley.

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.

“This is very unusual for a Wisconsin race, given the extent to which Club for Growth, Wisconsin Manufacturers and Commerce, Citizens for a Strong America, and the Greater Wisconsin Committee have played in the past,” says Laura Kinney, communications director for the group. “That is one reason why we are watching closely to see if all that will change with a last-minute surge of ad buys. More contracts can definitely be booked before the election and it wouldn’t be unusual if they were, although this is pretty late.”

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.

Short Take

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.

Categories: Murphy's Law, Politics

27 thoughts on “Murphy’s Law: Can Daley Beat Bradley for Supreme Court?”

  1. Kyle says:

    So… Bradley takes direct money from the unions, and decides on a union case, but that’s okay. Conservative groups buy ads outside of other justices campaigns, and those justices decide on a case related to those groups, and that’s why they’re “one of the most ethically challenged high courts in the nation.” I’m just going to assume that Bradley contributes to that designation, even though you separated the two bits of information, since the logic is exactly the same.

  2. Bruce Murphy says:

    Kyle, Bradley benefitted from an $8,625 donation from the state teachers union, while Prosser, Gableman and Ziegler each benefitted from more than $2 million in donations from WMC and Club for Growth. Bradley got 8% of her funding from all unions, public and private employee union, and for the other three justices the two conservative groups provided 76%, 69% and 59% of the spending to help them get elected. The difference is vast, hundreds of time more significant. The three justices also voted in favor of loosening rules on recusal which Bradley opposed.

  3. wisconsin Conservative Digest says:

    The Left in this country has always outspent the Conservatives with big money from various places. Obama outspent McCain 5-1 and the same with Baldwin etc. Millions were spent to beat Walker.
    Gableman is one of the finest Justices we have ever had, writing almost all of the majority opinions that have not been criticized the last 5 years.
    The heart of everyone of these major problems has been Bradley and Shirley. I have had many great friends on that court and they all dislike Shirley as one of the most obnoxious people they have ever known in the legal profession.

  4. AG says:

    Without looking up specifics… didn’t those justices opponents also have big outside money? If I recall, Kloppenburg (sp?) got over a Million dollars from liberal groups (or group). I don’t know about the others.

  5. Tim says:

    AG, either post a link or it didn’t happen. As for outside money, are you for a ban on contributions for anyone or any business not a resident of Wisconsin?

  6. Wisconsin Conservative Digest says:

    You cannot ban contributions from people in this country. You are obviously another Liberal that wants to restrict free speech.

  7. Bruce Murphy says:

    AG, there certainly has been significant spending on both sides in many of these races, particularly by Kloppenburg and that would have been an issue for them — if they won. The only liberal who won during this period was Abrahamson, who benefitted from $465,000 from the Greater Wisconsin Committee and $100,000 from Advancing Wisconsin, and if either group was a party to a case before the Supremes, I’d argue she should recuse. But it’s worth noting that the John Doe investigation the high court is being asked to shut down could potentially result in criminal penalties against those being investigated, which includes Wisconsin Manufacturers and Club for Growth, which provided 48% to 76% of the money supporting the election of four justices. If they vote to end the Doe investigation I don’t know how any average citizen could view it other than to say they bought the judges.

  8. Paul Berge says:

    You can expect WMC and the Club for Cancerous Growth to keep shelling out millions to stack the court with their stooges — just in case the warranties wear out on any of their previous bought-and-paid-for justices.

    Say, is there an ALEC for judges?

  9. Bill Kurtz says:

    Let’s end the charade and make Supreme Court elections partisan races.

  10. John Casper says:

    Bruce, excellent reporting, thanks.

  11. Paul says:

    What was unethical in the Wisconsin Supreme Court was when Bradley made up her story about being attacked by another justice. Also, why name all the groups the donated to the more conservative judges but not name the groups that gave to the liberal leaning ones?

  12. David says:

    So called conservatives and dark money in huge chunks have corrupted the WI Supreme Court with stooges. They are no longer a credible source of justice, decision making, and protecting the rights and freedom of people. The current makeup of the court will go to great lengths to protect their benefactors and corporate rights over a citizen. Wisconsin continues it downward spiral.

    Thank you for the reporting of facts even though it is very upsetting to many of us that hope for decency, honesty, integrity in our government systems and currently obtain the polar opposite with corruption, lies, distortion and propaganda.

  13. Bruce Murphy says:

    Paul, I named just two donors because they are parties to a case the high court is being asked to rule on and it brings up the question of whether they should recuse. The same thing would apply, as I noted, if groups that gave to the two liberal judges were party to a case the court was deciding.
    As to whether Bradley made up a story, the WI Judicial Commission did an investigation and the prosecutor found probable cause that Prosser had violated statutory judicial ethics in the incident and recommended it go to the appeals court for adjudication which never happened because most of the Supreme Court recused from the case. The prosecutor finding probable cause, by the way, had supporter Prosser’s past reelection effort.

  14. AG says:

    Yeah lets not let that whole “innocent until proven guilty” thing get in the way! Probable cause is the new standard now I see.

    At least I agree on the opinion that Justices should recuse themselves for any case involving large donors. If only in today’s politics candidates had more control over 3rd party PAC’s to which they are not involved… really creates a grey area. Also, not a fan of all the money put into elections these days (on either side).

  15. Bruce Murphy says:

    AG, come on, that’s unfair and you never are. I’m not saying Prosser is guilty. I offered a factual response for the benefit of readers to a comment saying Bradley “made up a story” about Prosser. I don’t know if he was guilty, nor do any of us because the case was never adjudicated, as I explained.

  16. AG says:

    Alright Bruce, your statement was indeed factual. Just to be clear though, since the case was never adjudicated, we also do not know if Bradley greatly exaggerated her claims and that Prosser was not, as he said, just reacting as she admittedly got “face to face to confront him.”

  17. PMD says:

    I thought I was safe from nasty attack ads in March 2015, but the other night while innocently watching television I caught a nasty attack ad for this race. It’s so depressing that races for things like state supreme court justice are not immune from these ads (ugh I am already dreading 2016). More $ in politics = bad news for sure AG.

  18. Rick Esenberg says:

    Bruce, it is artificial to say that recusal can only arise from a “debt of gratitude.” The Doe investigation targets just about the entire conservative infrastructure. Because “conservative” justices have benefited – or will benefit – from the activities of that infrastructure, you argue that conservatives should recuse. But that same infrastructure opposes the candidacies of “liberal” justices – or their allies. Might those justices not potentially have a “desire for revenge” that ought to be equally disqualifying? This could be true, moreover, even if a particular justice had a walkover election. We know that justices care about how their colleagues’ races come out (that is the premise for a state bar committee’s recommendation of a single sixteen year term) and they know that these groups are likely to be active in future campaigns. It seems to me that the liberals on the court have just as much incentive to silence conservative advocacy groups as conservatives have to preserve them. For example, Joanne Kloppenburg wasn’t elected to the Supreme Court, but she is now on the Court of Appeals and she sat on one Doe cases that is now before SCOWIS. WMC and the Club spent lots of money to defeat her. On your view of things, shouldn’t she have recused herself from a case involving them? She didn’t (and I don’t think that she should have). Aggressive recusal rules applied to a law developing court of last resort are at war with judicial elections. Maybe we shouldn’t elect supreme court justices but recusal of one side of the bench in response to an investigation that targeted one side of the political spectrum (whatever its motivation) seems wrong to me.

  19. Bruce Murphy says:

    Rick, my arguments regarding recusal were fully explored in this column: http://urbanmilwaukee.com/2015/02/19/murphys-law-supreme-court-justices-for-sale/
    And they are based on a U.S. Supreme Court decision and the move of states in response to that decision to set some kind of monetary limit as to when a campaign contribution to a justice should might mean a recusal is appropriate. As you know the court decision didn’t suggest a lack of donations should cause a recusal. All that said, I think the question of whether Kloppenburg should have recused is a valid one. I don’t buy the idea that every justice is tainted and therefore nothing can be done.

  20. wisconsin Conservative Digest says:

    Under a system of elected judges it is impossible for people to recuse themselves based on contributions any more. One time I had case in from of Larry Gram and he recused himself cause I knew him for years and gave him $10. Cannot happen anymore. Time to elect people to office solely on a partisan basis so we know where they stand.

  21. james says:

    WI SC has a 4-3 conservative majority. How can you have any credibility when you cant even get a simple court balance fact correct?
    Dont worry, ill do the research for you! Pretty sure Pew Research Center is not right wing.

    http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2013/04/01/balance-of-power-future-of-key-issues-at-stake-in-wisconsin-court-race

  22. Bruce Murphy says:

    Yes, James, the press all say its a 4-3 majority, including the New York Times, and they are all wrong. Please note that data that Crooks votes about 80% of the time with the four conservative judges. On some issues he is more conservative than some of the four other conservative judges. This data, by the way, is all public record and documented each year.

  23. Kyle says:

    Bruce, if it’s public record and documented each year, it should be easy for you to provide a link (or at least a source) so your readers can be better informed. I didn’t notice any link or citation in the article where you used the voting record information.

  24. John says:

    Wait a minnit–is Belling’s distaste for Daley because Daley supported the John Doe II probe? And does this mean that Daley does not, as Dale Schultz put it, “swear allegiance” to WTMJ’s talk radio? Dang.

  25. Frank Galvan says:

    No; the Koch Bros. didn’t need to buy another seat on the Supreme Court since they already had a majority. They chose to buy the Chief Justice’s seat instead.

  26. Paul says:

    Frank, the Koch brothers is that all you got? The people spoke and now it’s time to elect a chief judge

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