Karofsky Wrong About State Supreme Court

Jill Karofsky. Photo courtesy of Jill for Justice.

The Supreme Court campaign of Dane County Judge Jill Karofsky should alarm Wisconsin voters.

If Karofsky is correct, judicial malfeasance prevails at the state’s highest court. For example, Karofsky believes that:

1. A majority of current justices “do not follow the rule of law [and] make decisions before anyone walks in the state Supreme Court chamber [and] act like politicians” (Capital Times)
2. Justice Daniel Kelly is guilty “of hanging a ‘for sale’ sign” on the Supreme Court. (WisPolitics)
3. Kelly has displayed “corruption in its purest form” regarding whether he will participate in a pending case involving voter registration. (WisPolitics)

The seriousness of these and similar charges is undeniable. If valid, they amount to a shredding of the state’s code of judicial conduct.  And, as the Supreme Court is the final arbiter of code compliance, the public’s only recourse is at the polls.

On the other hand, an equally alarming picture emerges if one concludes that Karofsky’s charges are unfounded.  In that case, she has falsely smeared as unethical her opponent and several other justices, namely, Chief Justice Pat Roggensack, and justices Annette Ziegler, Rebecca Bradley and Brian Hagedorn. Those four have taken the unusual step of issuing public statements that rebuke Karofsky’s rhetoric.

What evidence justifies Karofsky’s incendiary assertions? I cannot find a single Wisconsin Supreme Court opinion that she offers or analyzes to support her claims.

I had a recent Facebook exchange with prominent Madison attorney Lester Pines, a staunch Karofsky supporter. When I noted that Pines did not cite any specific Kelly opinions to support the corruption narrative, he responded, “Of course I did not provide an analysis of his opinions.” Seriously?

Like Karofsky, Pines eschews the heavy lifting required to actually dispute the specific opinions and reasoning of Kelly and other justices, Pines and Karofsky offer a different rationale to support the claim of corruption. It goes like this (in Pines’ words):

Why does [Kelly] always vote in favor of the positions taken by the Wisconsin Institute for Law & Liberty?…Why did Scott Walker appoint him?…What distinguished him other than the fact that he would be a sure vote for the Walker agenda and do the bidding of the Bradley Foundation and WMC?

You know precisely why Dan Kelly was appointed. You just do not want to admit that there has been and continues to be a Republican effort to pack the courts with judges with a specific ideology which is presented as a legal philosophy. You know that is designed to corrupt the courts.

What, exactly, is the “specific ideology…presented as a legal philosophy”? An ideology “designed to corrupt the courts”? Pines does not explain. (Nor does Karofsky.)

For a stark contrast to their brand of reasoning and rhetoric, consider a lecture delivered fourteen years ago by Federal Appeals Judge Diane Sykes at the Marquette University Law School. Sykes offered a detailed and withering critique of the state’s Supreme Court 2004-05 term under a liberal majority headed by Shirley Abrahamson.

What distinguishes it from the narrative advanced by Karofsky (and, before her, Rebecca Dallet and JoAnne Kloppenburg) was a meticulous review of specific opinions. On the basis of that review, and without resorting to personal smears, Sykes had this to say:

The present Wisconsin Supreme Court is plainly disinclined to defer to the judgment of those elected to represent the people of this state, even though the structure of state government and the court’s precedents require it to do so. The court has lowered the threshold for invalidating statutes…The court is quite willing to devise and impose its own solutions to what it perceives to be important public policy problems-civil and criminal-rather than deferring to the political process…

The role of a justice is to interpret the law, not invent it. The people of Wisconsin are best served by justices who understand and embrace their duty to state what the law is, not what they prefer it to be. Justices should defer to democratic processes that result in the creation of laws by legislatures and not attempt to impose their policy preferences in their decisions.

There is a simple reason Kelly and the current majority often agree with legal analysis offered by groups such as the Wisconsin Institute for Law & Liberty (WILL). It is because they share with WILL the legal philosophy set forth so clearly by Sykes. Rather than accepting the challenge of offering voters a competing philosophy, Karofsky demeans the current majority as corrupt.

Kelly is correct to label this as slander. To conclude otherwise is to believe words have no meaning and that current justices go through the motions in a lockstep, pre-ordained conspiracy to serve special interests.

The background of the current majority, presented at the court’s official website, warrants review. To disagree with these individuals on legal philosophy is one thing. To brand them as corrupt is slander. It is alarming that such an approach is the mainstream view of leading Wisconsin liberals.

Finally, why the silence from Justice Dallet now that she has been on the court for more than a year? She’s had a first-hand look at how decisions are rendered and deliberated. Her campaign was premised on claims that the court was “partisan” and that its work was shaped by “special interests.” If she still believes that — assuming she ever believed it in the first place — she has an obvious obligation to make her concerns known. The most likely explanation for her silence is the overwhelming evidence that she has seen firsthand proves that her claims — and Karofsky’s — are bogus.