Court illustrates power of appointments
MADISON – Brian Hagedorn’s inauguration as a state Supreme Court justice this week will mark the end of a legal era and starkly underscore governors’ power to reshape Wisconsin courtrooms with like-minded appointees.
Hagedorn will be sworn in Thursday to replace 83-year-old Justice Shirley Abrahamson, the state’s longestserving and first female justice. A liberal, Abrahamson chose not to seek re-election as she battles cancer. Hagedorn defeated liberal-backed Appeals Court Judge Lisa Neubauer in April to claim the seat and expand conservatives’ control of the high court to 5-2.
The Hagedorn-Neubauer race, though ultimately settled by voters, pitted two candidates who were initially appointed to lower courts by governors who appeared to share their ideology. Republican Scott Walker appointed Hagedorn to a spot on the 2nd District Court of Appeals in 2015. Democrat Jim Doyle appointed Neubauer to the same appeals court in 2007. Legal experts say their path to the courts is emblematic of governors packing the courts with allies, resulting in judges who produce predictable partisan decisions.
“You’d like to think you’ve got seven people sitting there and looking over the law and being fairly dispassionate about it. (Their decision) shouldn’t be predictable by someone who knows nothing about the law,” said Frank Tuerkheimer, an emeritus University of Wisconsin-Madison law professor who studies judicial ethics. “As we become more polarized why shouldn’t appointment of judges be polarized, too? I would be surprised if it were otherwise.”
The Wisconsin Constitution grants the governor the power to fill vacancies on any court, mirroring the federal system in which the president appoints federal judges. Unlike lifetime federal appointments, the governor’s appointments must run in the next election to keep the post. But the appointees go into the contests as incumbents, giving them a huge edge in name recognition and contributions.
Wisconsin has 272 state court judgeships. Governors have made 153 judicial appointments since 2002.
Doyle appointed 66 judges during his two terms, most notably giving Democratic state Rep. Gary Sherman a job as an appellate judge. Walker appointed 86 judges during his two terms, including handing GOP Attorney General Brad Schimel a Waukesha County judgeship in November just a day after Schimel conceded defeat in his bid for a second term.
Walker has also had a huge impact on keeping the Supreme Court in conservative hands.
Besides giving Hagedorn his start as a judge, he appointed Justice Rebecca Bradley to her first job as a judge in Milwaukee County Circuit Court, then named her as an appellate judge and finally appointed her to the high court in 2015 after Patrick Crooks died in office. Bradley used her incumbency as a springboard to defeat liberal JoAnne Kloppenburg in 2016 for a 10-year term on the court.
Walker appointed Justice Dan Kelly to the court that same year to replace retiring conservative David Prosser even though Kelly had never worked as a judge before.
Kelly and Bradley have gone on to play key roles in several significant rulings. They joined the conservative majority in two rulings in June that preserved Republican lame-duck laws limiting Democratic Gov. Tony Evers’ powers and forced the state schools superintendent to get the governor’s permission before writing policies.
Kelly will face Dane County Circuit Judge Jill Karofsky and Marquette University law professor Ed Fallone in next spring’s elections. The power of incumbency is already coming into play for Kelly; he’s built a substantial fundraising lead over Karofsky and Fallone.
Evers has made one judicial appointment since taking office in January, picking attorney Rachel Graham to replace Sherman. Evers has plenty of time to make more appointments if openings present themselves before his first term ends in 2022.
“If he chooses to name highly ideological Democrats, that will change the philosophy of the courts and bring the divisiveness of politics further into the (judicial system),” said Howard Schweber, a UW-Madison political scientist who studies constitutional law and democratic theory.
Turkheimer said judicial elections don’t solve the problem because they hinge on campaign contributions, which can taint the perception of a candidate’s impartiality. Governors double as the leaders of their parties, giving them huge influence in elections as they recruit and promote candidates, Schweber added.
The state could turn to a nonpartisan commission to fill judicial vacancies but that would take a constitutional amendment stripping the governor of appointment powers. Such amendments must pass the Legislature in consecutive sessions and a statewide referendum before taking effect, a high bar in such a divisive political climate.
“An extreme level of partisan division is becoming more and more a feature of our politics at every level and it’s spreading into levels where it previously wasn’t a major feature. State courts are one of them,” Schweber said. “The question is when will people become tired of this and take action for a different kind of politics?”