How State Supreme Court Races Got So Partisan

Judicial races in Wisconsin are supposed to be nonpartisan. Technically, they still are. And ideally, that’s the way they should be.

Our judges and justices should be above partisanship. They should be impartial arbiters of the law, not beholden to one party or another — or one ideology or another.

But over the last 15 years, this ideal has fallen by the wayside, as our judicial elections, especially for the Wisconsin Supreme Court, have become increasingly partisan.

This stems largely from a decision by Wisconsin Manufacturers & Commerce to start throwing huge amounts of money into the races for Wisconsin Supreme Court, and then for liberal groups to respond in kind.

The push by Wisconsin Manufacturers & Commerce was part of a coordinated move by big business groups around the country to throw themselves into state court races. It also reflected the decades-long strategy by the Koch brothers and other rightwing forces to take over every lever of political power.

“State Supreme Court elections attracted record sums from business interests,” noted a 2007 report from the Brennan Institute and two other groups.

Former U.S. Supreme Court Justice Sandra Day O’Connor put it bluntly that year:

“In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution.”

It wasn’t always this way in Wisconsin. For many years, the Wisconsin Supreme Court had a tremendous national reputation, and outside money played little, if any, role in who got on the court.

For instance, in 2003, in the race between Pat Roggensack and Ed Brunner, outside groups spent all of $27,200 on independent expenditures.

But look what happened in 2007, when Linda Clifford challenged Annette Ziegler. In this one, outside groups spent $3.1 million – more than 100 times what they spent in 2003. Wisconsin Manufacturers & Commerce itself shelled out $2.2 million for Ziegler, and the rightwing Club for Growth spent $400,000 for her. The liberal Greater Wisconsin Committee spent $400,000 for Clifford.

Then in 2008, outside groups spent $4.8 million when a guy named Michael Gableman challenged Louis Butler, the first African American ever to serve on the Wisconsin Supreme Court. The Gableman campaign ran hideously racist ads against Butler and was aided by $1.8 million in expenditures by Wisconsin Manufacturers & Commerce. The Greater Wisconsin Committee countered with $1.5 million, and Club for Growth poured in $500,000.

The 2009 race between Shirley Abrahamson and Randy Koschnick was an anomaly, with outside groups spending only $577,000. (Abrahamson had raised a lot of money on her own and seemed unbeatable, so the outside groups stayed away, by and large.)

In 2011, in the throes of the anti-Walker protests, the outside groups jumped back in, spending $4.5 million in the race between David Prosser and challenger JoAnne Kloppenburg. Here, the Greater Wisconsin Committee spent $1.7 million for Kloppenburg, with Wisconsin Manufacturers & Commerce spending $1.1 million for Prosser.

In 2013, things calmed down a bit, with outside groups spending $1.2 million in the race between Pat Roggensack and Ed Fallone. Wisconsin Manufacturers & Commerce spent $500,000 in this one for Roggensack. Club for Growth spent $350,000 for her. And the Wisconsin Realtors Association spent $207,000 for her.

The 2015 race between Ann Walsh Bradley and James Daley was another anomaly, with only $171,000 in outside spending, with all but $2,000 of that was from the Greater Wisconsin Committee in favor of Ann Walsh Bradley. (Like Abrahamson in 2009, Bradley had raised a lot of money on her own and most outside groups held their fire.)

In 2016, JoAnne Kloppenburg challenged Rebecca Bradley, and outside groups spent $3.43 million. Here, the leading rightwing spender was the Wisconsin Alliance for Reform, which spent $2.6 million on behalf of Rebecca Bradley. The Greater Wisconsin Committee spent $710,000 for Kloppenburg.

In 2018, outside groups spent $2.8 million in the race between Rebecca Dallet and challenger Michael Screnock. Wisconsin Manufacturers & Commerce spent $1.2 million on behalf of Screnock. The Greater Wisconsin Committee spent $940,000 on behalf of Dallet.

In 2019, outside groups spent $4.5 million in the race between Brian Hagedorn and challenger Lisa Neubauer. In this one, the Greater Wisconsin Committee spent $2.3 million, with the Republican State Leadership Committee spending $1.25 million.

Then in 2020, outside spending reached a record high of $5 million in the race between Jill Karofsky and incumbent Dan Kelly. The liberal group A Better Wisconsin Together spent $1.9 million. Wisconsin Manufacturers & Commerce spent $1.1 million. The Republican State Leadership Committee spent $897,000. And the Koch Brothers’ group, Americans for Prosperity, spent $479,000.

We can expect the April 2023 race to once again break a record, as Pat Roggensack is retiring, leaving three liberals on the court and three conservatives. So whoever replaces her in that race will determine the ideological balance on the court.

That noise you hear is the avalanche of outside money that is about to pour down on Wisconsin.

Matthew Rothschild, Executive Director of the Wisconsin Democracy Campaign.