Supreme Decision

This article originally appeared in Isthmus.

At a special teleconference meeting on March 18, Republican members of the Wisconsin Elections Commission, including its chair, Dean Knudson, argued that the commission should be doing whatever it can to make sure the election happens on April 7.

“In the current coronavirus crisis, it’s still extremely important and vital to the functioning of our society, we need to have our elections on April 7,” Knudson said. “Unlike states in which they’re holding only a presidential primary, our elections are much more important than that.”

Besides the primary, Wisconsin voters will choose between Dane County Judge Jill Karofsky and incumbent Justice Daniel Kelly for a 10-year term on the Wisconsin Supreme Court. But now it’s not certain whether and how the election will take place.

Gov. Tony Evers has consistently said he wants the election to go on as scheduled, in part because of critical contests for local governments. State officials are scrambling to recruit enough poll workers while pushing to have the election take place as much as possible — perhaps entirely — by absentee ballot. The deadline for most voters to request an absentee ballot is now April 2. As of March 554,116 voters had requested absentee ballots.  On Friday, Gov. Tony Evers requested that the Legislature act to send absentee ballots to every registered voter in Wisconsin, but legislative action is far from certain.

Voters can request an absentee ballot at myvote.wi.gov.

The state Supreme Court race presents Wisconsin with a dramatic choice, especially given that Kelly, who was appointed to the bench in 2016 by Gov. Scott Walker, has a track record of expressing contempt for the very idea of government assistance to people in need.

“It is true that there will always be people who need help,” Kelly wrote in a blog post in 2012. “I believe Jesus said as much. But to the extent we conclude from that datum that government must intervene, we do a disservice to those we are supposedly helping, as well as the people from whom we are stealing to provide the ‘help.’”

So what is at stake in this election?

“Not to put too fine a point on it, but really the future of Wisconsin,” Karofsky said in a March 3 interview for this article in a downtown Madison coffee shop. “The cases that the court’s going to hear [in the near future] are going to have consequential impacts on the state.

“Start out with gerrymandering,” she says. “There’s certainly going to be a gerrymandering case that gets to the Supreme Court and we know from what’s happened in the past what an impact that decision will have.” (In 2018, state Republicans won 63 of 99 Assembly seats despite getting just 46 percent of the total vote.)

Karofksy, a Dane County judge since 2017, anticipates court rulings regarding women’s access to health care, gun violence, criminal justice reform, the environment including the climate crisis and “what democracy in this state is going to look like.”

“All of that’s on the line.”

Karofky and Kelly were the top vote-getters in a relatively high-turnout Feb. 18 primary that eliminated Marquette University Law School professor Ed Fallone. Kelly snared half of the votes cast, compared to Karosky’s 37 percent.

The winner on April 7 will get a 10-year court term starting Aug. 1, assuming that timetable still stands. Karofsky, noting Wisconsin’s status as a key swing state in the presidential race, said on March 3 that the court could end up deciding issues regarding election integrity, voter suppression and even a possible recount in the fall presidential election. Or, as her campaign put it in a January fundraising appeal: “Donald Trump needs Dan Kelly on the Court to rig the election in November.”

The next state Supreme Court will also be called on to decide all sorts of important legal matters related to the COVID-19 pandemic. That’s where Kelly’s apparently deep-seated animus even to programs like Social Security and Medicare might come into play.

“When the recipients [of public aid] are people who have chosen to retire without sufficient assets to support themselves, we call the transfer Social Security and Medicare,” Kelly wrote in a 2013 blog post. “And it’s welfare when the recipients are those who don’t create enough to sustain themselves during their working years.” He said the “transactions” that lead to people getting help like this from the government “bear all the indicia of involuntary servitude.”

Even if the April 7 election doesn’t help decide who becomes president, or determine what life is like for the lazy bones now wanting the government to help them because of this coronavirus, it will shape the court’s ideological balance for years to come. If Kelly wins, court conservatives will retain their 5-2 domination of the court at least through 2026, assuming the elected justices all finish their terms. A loss by Kelly would cut the conservatives’ edge to 4-3 and give liberals a chance to gain control in 2023, when Chief Justice Patience Roggensack will be up for reelection.

The candidates’ have been sticking to their scripts. Kelly is calling Karofsky an activist judge eager to put her own liberal political views ahead of the plain meaning of the law, all the while insisting that his own manner of deciding cases is utterly free of ideological bias.

“When we put on the black robe,” Kelly said during one pre-primary debate, “we put aside all of our personal beliefs and opinions and preferences, and we simply apply the law.” (Kelly’s campaign spokesperson did not respond to interview requests for this article.)

Karofsky, meanwhile, paints Kelly as a “corrupt” tool of his Republican benefactors: “He wants their money and they want his decisions.”

A former Dane County prosecutor and state victim rights advocate, Karofsky says she understands how the law impacts the lives of ordinary people. She describes herself as someone who will stand up for civil rights, constitutional rights, racial justice and public education.

“I have been very open and honest about what my values are, and I am the only person in this race who has a track record of following the rule of law,” she says. “That is not what we see with Dan Kelly.”

Until the coronavirus outbreak, it seemed as though being on the same ballot as the presidential preference primary put Kelly at a disadvantage, because the election was expected to draw large numbers of Democrats to the polls. In late 2018, the Republicans who run the state Legislature tried moving the primary to a different date, admittedly in order to improve Kelly’s chances, but the effort was abandoned under protest.

But now, in addition to questions over whether there will be any polls to be drawn to, it looks as though the fight for the Democratic nomination will be largely if not actually decided before Wisconsin weighs in. And Republicans are stoked to keep Kelly in black robes.

Kelly, for his part, argues that the overlap with the presidential primary doesn’t matter, telling the Milwaukee Journal Sentinel he thinks the public just wants “someone who’s going to put aside the politics and just do the job of a justice, just apply the law.”

But claiming to be above politics and ideology is a hard sell for Kelly, who is deeply immersed in both. He is the former vice president and general counsel for the Kern Family Foundation, a conservative philanthropic organization. As an attorney in private practice, he represented state Republicans in a federal lawsuit challenging the 2010 redrawing of legislative districts. He formerly served on the litigation advisory board of the Wisconsin Institute for Law and Liberty, and has repeatedly ruled in its favor on the court.

Kelly is past president of the Milwaukee Lawyer’s Chapter of the Federalist Society, a conservative legal group which on the national level is working with the Trump administration to remake the federal judiciary. His campaign rents office space from the state Republican Party, which helped circulate his nomination papers. He’s been heartily endorsed by Donald Trump.

Kelly has also left a paper trail of extreme statements and positions. He’s likened affirmative action to slavery and said the U.S. Supreme Court’s ruling against the Defense of Marriage Act, a precursor to its 2015 ruling striking down laws against same-sex marriage, “will eventually rob the institution of marriage of any discernible meaning.”

From 2012 to 2015, Kelly blogged on a website called Hang Together. The posts were removed after his appointment to the Supreme Court in 2016 because, his spokesman said, “He didn’t want it to seem he was out there discussing political views while he was on the court.” But cached versions were unearthed by the liberal advocacy group One Wisconsin Now.

Kelly, in these posts, is in full cultural-warrior mode. He sounds off on “Chavez-loving” actors and the “socialist revolutionary-wannabe wearing the Che Gueverra [sic] t-shirt (brought to you, of course, by a host of profit-making capitalist companies).” He sees President Obama’s 2012 reelection as a victory for “the socialism/same-sex marriage/recreational marijuana/tax increase crowd,” adding “the economic policy over the past four years has been almost exclusively socialist.”

He expresses support for the U.S. Supreme Court’s Citizens United decision, which unleashed corporate spending in elections. He portrays a thuggish Environmental Protection Agency that “is of the opinion that it may prevent you from building a house on your property if it decides it gets wet too frequently.”

Kelly declares that “marriage is dead” because society has become more accepting of the idea of sex outside of matrimony. He rues that the state has assumed “the authority to tell the baker to bake a cake” — that is, to keep the baker from turning away gay couples. He calls the U.S. Supreme Court’s legalization of same-sex marriage an “illegitimate exercise of State power.” He decries legal abortion as “a policy that has as its primary purpose harming children.”

Again and again, Kelly rails against “wealth transfer” programs that help people in need — including, presumably, all the crybabies now turning to the government hat-in-gloved-hand due to the coronavirus crisis. “This is how we breed resentment: Take from those who create and give it to people who don’t,” he clucked in a 2013 post. “Welfare recipients do not receive their checks as manna from heaven. Someone created that wealth, and then the government forcibly took it.”

It’s going to be difficult for Kelly to whip up enthusiasm for his candidacy among people going to the polls or the Post Office mainly to indicate which Democrat — Joe Biden or, if he’s still in the race, Bernie Sanders — they want to send into battle against Trump.

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Welfare recipients do not receive their checks as manna from heaven. Someone created that wealth, and then the government forcibly took it.

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Difficult, but not impossible.

Each of the last four conservative contenders for state Supreme Court, Kelly included, has been tied to extreme words and deeds.

In 2016, Justice Rebecca Bradley, a Walker appointee, was confronted with college writings in which she referred to being gay as “an abnormal sexual preference,” to feminists as “angry, militant, man-hating lesbians who abhor the traditional family,” and to people with AIDS as “degenerates,” suggesting they deserve to die. She apologized for these musings, saying she is “frankly embarrassed at the content and tone of what I wrote those many years ago,” and went on to beat her liberal-backed opponent, JoAnne Kloppenburg. (Kelly, in his application to Walker seeking appointment to the court, said he was “a ‘kitchen-cabinet’ advisor to Justice Rebecca Bradley in her 2016 campaign.”)

In 2017, conservatives backed Sauk County Judge Michael Screnock, who as a young man was twice arrested for blocking access to a Madison abortion clinic, for which he professed to have no regrets. Screnock helped defend the state’s Act 10 law kneecapping public employee unions, and the redrawing of voter boundaries to the GOP’s advantage. He lost to liberal-backed rival Rebecca Dallet.

And in 2019, just five months after electing Democrats to every statewide office, including governor and attorney general, the Wisconsin electorate turned around and picked Brian Hagedorn, a politically wounded ultra-conservative, over liberal-backed Lisa Neubauer, who ran a weak but well-financed campaign.

Hagedorn had served as chief legal counsel for then-Gov. Scott Walker, helping draft Act 10. The disclosure of his ties to a Christian school that reserves the right to fire gay teachers and expel gay students led the Wisconsin Realtors Association to withdraw its endorsement and ask for the return of its $18,000 donation. But Hagedorn and his supporters — including the Republican State Leadership Committee, which came to his rescue with a cash infusion late in the race — managed to frame his bigotry as a religious rights issue.

In blog posts from 2005 and 2006, when he was in law school, Hagedorn proclaimed that “Christianity is the correct religion, and that insofar as others contradict it, they are wrong.” He likened homosexuality to bestiality and called Planned Parenthood “a wicked organization more committed to killing babies than to helping women.” He deemed the NAACP “a disgrace to America.” He fumed that a workplace’s observance of Gay and Lesbian Pride Month was an “attempt to have us all ‘celebrate’ homosexuality and other deviances.”

If someone with Brian Hagedorn’s crimped worldview can get elected in Wisconsin, Dan Kelly can, too.

Kelly purports to embrace the judicial philosophy of “textual originalism,” meaning he adheres to the original meaning of the law or the U.S. or state constitutions when they were adopted.

“It’s our responsibility to apply the law, not to make it up, not to ignore it, not to play favorites with the law,” he said when we spoke in a pre-primary interview. “We have to set aside our own personal beliefs.”

As Karofsky sees it, that’s a big bunch of hooey.

“Dan Kelly was put on the court by Walker, because of his ideology,” she says. “He has an agenda and he has carried out that agenda in every single decision he’s made.”

According to a review by One Wisconsin Now, Kelly voted in sync with the conservative Wisconsin Institute for Law & Liberty on all nine cases he’s heard in which it has represented a litigant or filed an amicus brief, including his two dissents from rulings that went against the group. (One of these was cited by Kelly as an instance in which he opposed WILL while siding with it, because he rejected one of its arguments.)

Kelly recused himself from taking part in rulings regarding WILL’s effort to purge more than 200,000 voters from the voter registration rolls when these could have impacted the April 7 election. But now that WILL has asked the Supreme Court for a final ruling, Kelly has said he would “rethink” his decision not to participate after this election is over.

And Kelly has mostly clung to the robe tails of the court’s other conservatives. In 2016-17, his first year on the court, Kelly and conservative Justice Rebecca Bradley voted the same on non-unanimous decisions 97 percent of the time, according to an analysis by Alan Ball, a history professor at Marquette University. Both voted in sync with “the court’s two staunchest conservatives,” Chief Justice Roggensack and Justice Annette Ziegler, in around eight of every 10 non-unanimous cases that year.

But over time, Ball says in an interview, “Justice Bradley has grown less predictably inclined than Justice Kelly” to align with these other conservatives. In the 21 cases decided in the court’s current term, through mid-March, Kelly voted contrary to Roggensack and Ziegler only once, while Bradley broke from the pair four times.

Yet Karofsky’s talk of corruption has been blasted by Kelly as “disgusting slander” and condemned by his four fellow conservatives on the court. “At no point has she actually engaged in a substantive critique of Justice Kelly’s opinions, reasoning or legal analysis,” Justices Rebecca Bradley and Hagedorn said in a statement. “She simply casts aspersions based on the outcomes of cases, which evidences her own outcome-driven judicial approach.”

Kelly, who in 2017 authored a decision overturning the city of Madison’s ban on the carrying of concealed weapons on city buses, has been endorsed by the National Rifle Association. (He even held a fundraiser at a shooting range the day after a gunman murdered five people in Milwaukee, with suggested donation amounts tied to gun calibers.) He’s also backed by state anti-abortion groups.

As of the last reporting, in mid-February, Kelly had raised more than $1 million from donors since the start of his campaign and had $462,864 on hand. Karofsky had raised about $450,000, and had $83,393 on hand.

In the nine contested state Supreme Court races since 2007, outside interests spent about $25 million, compared to $18 million by the candidates’ campaigns. The biggest spenders have been the Greater Wisconsin Committee on the left and Wisconsin Manufacturers & Commerce on the right.

“They’re going to outspend us,” predicts Karofsky, brushing aside that in last year’s record-setting state Supreme Court race, liberal-backed Neubauer and her allies outspent Hagedorn and his allies $4.9 million to $3.4 million.

“There are groups that are going to be involved in this race that weren’t in that race,” she says. “WMC and the Realtors. I would be surprised if they don’t get in this race because Dan Kelly is a sure bet for them. He is going to rule in their favor every single time.”

Candidate thumbnails

Jill Karofsky

Age 53, single mother of two, lives in Madison; mother Judy is former Middleton mayor. Served as a Dane County prosecutor, general counsel to the National Conference of Bar Examiners, and head of the state’s Justice Department’s Office of Crime Victim Services. Elected circuit court judge in 2017.

Endorsed by many judges, lawyers and elected officials, Russ Feingold, Tammy Baldwin, Jim Doyle, Justice Rebecca Dallet, unions includingWisconsin AFL-CIO.

Justices she’spraised: Shirley Abrahamson, Ruth Bader Ginsburg.

Favorite movie about the law: My Cousin Vinny.

Favorite book: One Hundred Years of Solitude by Gabriel García Márquez.

Daniel Kelly

Age 56, married, five children; lives in the village of North Prairie in Waukesha County. Has worked as a lawyer for the federal government and in private practice. Appointed to the court by Gov. Scott Walker in 2016.

Endorsed by: PresidentDonald Trump, Justices Rebecca Bradley, Brian Hagedorn, and former Justice David Prosser,Wisconsin Right to Life,Pro-Life Wisconsin, theNRA.

Justices he’spraised: Antonin Scalia, Clarence Thomas.

Favorite movie about the law, and favorite book: Did not agree to interview to answer.

On the issues

Guns

Karofsky, while defending the individual right to own guns, has called for action by lawmakers to address gun violence.

Kelly is backed by the NRA, held a fundraiser on a gun range shortly after the mass shooting at the Molson Coors plant in Milwaukee, and ruled against letting Madison ban concealed weapons on city buses.

Abortion

Kelly has repeatedly expressed his opposition, including his blog post claim that the Democratic Party and the National Organization for Women want to normalize abortion to “preserve sexual libertinism.”

Karofsky believes Roe v. Wade is settled law and was correctly decided. She says reproductive health care decisions should be between a woman and her doctor.

Recusal

Karofsky says Wisconsin has “one of the weakest recusal rules in the country” and would like the state Supreme Court to adopt tougher ones, especially when substantial donors are litigants.

Kelly was part of a conservative majority that rejected calls for stricter rules.

Same-Sex Marriage

Kelly, in a blog post, rued the U.S. Supreme Court’s 2015 legalization of same-sex marriage: “We, today, no longer have a democracy, much less a republic.”

Karofsky supports same-sex marriage, telling the Milwaukee Journal Sentinel “We love who we love and I think that it’s important for the government to recognize that.”

Redistricting

Karofsky says the court’s potential role in the redrawing of voter boundaries after the 2020 census is one of the fundamental issues affecting democracy in Wisconsin.

Kelly was hired by state Republicans lawmakers in 2012 to defend the voter maps they drew up in secret to maximize their partisan advantage.

This article originally appeared in Isthmus.