10 Lessons of Supreme Court Race
Anger drives votes, media in decline, traditional judicial campaigns are dead, and more.
While there’s likely to be a recount in the race for Wisconsin Supreme Court, Lisa Neubauer has a very slim chance of winning. And even if she does, her tight race with apparent winner Brian Hagedorn stands as a shocking upset few expected. The results tell us a lot about this state’s politics, with lessons for both parties.
1. The Blue Wave is still rolling. Neubauer actually got far more votes in this election than Rebecca Dallet did a year ago in the Spring 2018 race, and that includes more votes in both Dane County and the City of Milwaukee than Dallet got. In short, liberal voters were if anything more energized than a year ago. The difference was a massive increase in the turnout by conservative and Republican voters. All told, more than 1.2 million people voted, compared to just 997,000 in the Spring 2018 Supreme Court race, a 21 percent increase in turnout.
2. Wisconsin is still a purple state. This race had a big turnout by both parties, a Red Wave meeting a Blue Wave, and the result was a virtual tie. That’s Wisconsin. In November Democrat Tony Evers won for governor by 1.1 percent. The state twice supported Democrat Barack Obama for president, yet three times supported Republican Scott Walker for governor. It went for Democrat John Kerry by less than half a percentage point in 2004 and for Republican Donald Trump by an even narrower margin. This is still one of the most politically divided states in America, where either party can win. It all depends on turnout.
4. Anger drives elections. Liberals were angry about Trump, which helped drive their wins in the Spring and Fall elections of 2018, while Republicans were more contented, with all control of the federal government. The GOP loss of the House of Representatives in November, along with Evers’ win for governor, changed the dynamic, motivating Republicans. Stoking them more were outside ads for Hagedorn, warning of a liberal takeover by Neubauer and comparing the negative press about Hagedorn to the liberal attacks on Trump’s choice for the U.S. Supreme Court, Brett Kavanaugh. Get your base mad and they will turn out.
5. The Walker coalition is still potent. Hagedorn was Scott Walker’s former chief counsel and Walker’s choice to run for the Supreme Court. The November election may have shown some Walker fatigue among Republicans, and polls may show a clear majority of voters doesn’t want him to run again, but the conservative coalition he helped build turned out in droves to support Hagedorn.
6. Grassroots still matter: Hagedorn’s strident views on gays were a turnoff for much of the GOP establishment, groups like the Wisconsin Realtors Association, the U.S. Chamber of Commerce, and the Wisconsin Manufacturers & Commerce (WMC), who saw Hagedorn as unelectable and/or too extreme for their members. But grass-roots Republicans hammered the idea that Hagedorn was being criticized for his religious views, and this helped drive white conservative Christians to the polls. Counting campaign and outsider spending, there were probably more dollars spent on Naubauer, yet she lost.
7. Outside money still matters: With the Realtors and WMC deserting Hagedorn, he missed out on the $2 million or so they have typically spent on a Supreme Court race, leaving him at a huge financial disadvantage. Then the Republican State Leadership Committee swooped in toward the end of the campaign with $1.2 million in TV ads stoking the anger of conservatives. Much of it was spent in the media markets serving outstate and northern Wisconsin — Trump country — and the ads worked. And ironically the outside ads for Neubauer, bashing Hagedorn as anti-abortion and anti-gay, no doubt also increased the conservative turnout to vote against Neubauer. Hagedorn couldn’t have won without both kinds of ads.
8. The media’s clout is declining. The Journal Sentinel stories by Dan Bice and others at the newspaper reporting on Hagedorn’s anti-gay views and actions led one Republican consultant to declare the candidate had been “Biced” and was unlikely to recover. That might have been true five years ago, but the incredible decline of the JS has been the key driver in a drastic reduction of the media’s role in elections. Facebook and Google ads, youtube videos and other newer media are swamping traditional journalism and changing campaigns.
9. Traditional Supreme Court campaigns may be dead. Neubauer ran the classic judicial campaign, emphasizing her longer experience and far bigger list of endorsements while steadfastly refusing to discuss her political views or opinions on virtually any judicial cases. This was once the golden road to victory in a high court race, and that should have been all the more true in a race where her opponent had written a raft of un-judicial blog posts, trashing gays, the NAACP and Planned Parenthood, and never denying or apologizing for these views. Yet Neubauer lost.
Why? Because judicial races in Wisconsin have become totally politicized. Hagedorn insisted over and over that Neubauer was political and aligned with liberals or Democrats, and hiding her views. As for the fact that 98 percent of judges endorsing in the race picked Neubauer, for some Trump voters that may be a mark of shame, showing she’s in bed with those dreaded government insiders.
Unlike Neubauer, Dallet offered anti-Trump comments and other liberal statements to rally her base a year ago and won (though in a race without this year’s Red Wave). That may become the model for all future judicial races. In hyper-partisan Wisconsin, wearing the robe doesn’t mean you’re not a politician.
10. Judicial advocates for defendants can’t win. The funny thing about both Dallet and Neubauer is that they aren’t liberals — at least when it comes to criminal rights. Indeed, there was little or no difference between Neabauer and Hagedorn in their opinions related to rights for criminal defendants. Dallet, too, had a record as being very tough on crime.
Odds are we will never again see a candidate with any concern for the rights of the accused ascend to the high court again. The vicious and completely inaccurate ad run in 2008 by Michael Gableman against Louis Butler, falsely claiming the incumbent Supreme Court justice had once let a criminal off on a legal “loophole”, led to Butler’s defeat and sent a message to judges: Don’t ever take a stand for the rights of the accused or that case will be held against you in attack ads.
Gableman may go down in infamy for this. Indeed, the Republican establishment clearly felt he was too ethically stained to win reelection and he stepped down after one term.
But the damage had been done. Butler’s defeat has already changed judicial elections in Wisconsin and may ultimately tilt the scales of justice to further diminish the rights of the accused in criminal cases. When no one wearing judicial robes in Wisconsin dares to take a stand on such issues, the defendant’s rights will inevitably get less protection. It’s not just elections that have consequences. Campaigns do, too.
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