Court race stresses need for checks and balances
It has been nearly 240 years since the American experiment in self-government got off the ground. It couldn’t have lasted this long and provided a beacon to the rest of the world if our nation’s founders hadn’t had the forethought and wisdom to create a true separation of powers — a legislative branch to write laws within the Constitution, an administrative branch to carry out the laws under the Constitution and a judicial branch to ensure the rule of law, set its limits and uphold the Constitution.
Both the administrative and legislative branches are naturally beholden to the majority that elects them. It is the judicial branch, at both the state and federal level, that has done the most to look out for those who lack wealth and power; to ensure that they receive equal treatment under the law; to see that our government defends the inalienable rights of the weak and affirms the self-evident truth that all are created equal.
Thanks largely to the independent power of the judicial branch — and a free and independent press — we have done a better job over time than the governments before us at ensuring justice for the poor while preventing the powerful from rising above the law and assuming control. In short, that balance of powers has proved essential to maintaining our peace.
But we have lost the balance of power in Wisconsin, and this should concern you no matter where you fall on the political spectrum.
In recent years, a majority of the state Supreme Court has marched in lock step with Gov. Scott Walker and the Republican-controlled Legislature even though Wisconsin is almost evenly divided in thirds among Republicans, Democrats and independents. The same powerful and wealthy interests that have spent millions of dollars on attack-ad commercials to support lawmakers and a governor who are of the same mind also have supported the campaigns of a majority of sitting state Supreme Court justices. This election will not change that. But perhaps it can get us started in a new direction.
We wish we were choosing between two capable, proven, independent candidates with long and stellar judicial careers. Shouldn’t that be the case when selecting members of our highest court?
Instead, we are choosing between a longtime state attorney with three and a half years of experience as an appeals court judge and a business attorney with a scant judicial resume whose primary qualification for appointment to the bench appears to be her fealty to those same powerful interests standing behind the governor, the Legislature and four other Supreme Court justices.
Rebecca Bradley touts herself as qualified because, she says, she is the only justice to ever have served at all three levels of the court system — circuit judge, appeals court judge and Supreme Court justice. Let’s look at that.
Walker appointed Bradley to the Milwaukee County bench in 2012 and then just last May to the Milwaukee-based District 1 Court of Appeals. She barely had time to learn where to park before Walker appointed her once again in October to the Supreme Court to replace N. Patrick Crooks, a distinguished jurist and the court’s most independent thinker, after he died in September.
What citizens got, courtesy of Walker, was a justice who wasn’t ready for the job.
Bradley’s inexperience is one problem. The larger question is her judgment. She has so little experience and judicial record — her county children’s court records are confidential — that we are left to look at her past for clues before electing her to a 10-year term.
While a senior at Marquette University, Bradley wrote in the student newspaper that she had no sympathy for AIDS patients, calling homosexual victims “queers,” because they had chosen to kill themselves. She said Americans were either “totally stupid or entirely evil” for electing President Bill Clinton, a “socialist adulterer.” Yes, she was young, and, yes, she has apologized for her youthful writings. Still, a 21-year-old is not a child and how many college seniors do you know who wrote such mean-spirited opinions for publication in the ’90s — or any decade?
More than a decade later, Bradley represented the former chief operating officer at her former law firm, with whom she’d had a romantic relationship, in a child placement case. Attorneys representing the man’s son and ex-wife both raised ethical concerns, court records show. It is against the state’s attorney code of conduct, which is enforced by the Supreme Court, for an attorney to have a romantic relationship with a client — unless the romance preceded the attorney-client bond. Bradley informed the judge that their romantic relationship had started years earlier, to a time when she was married to another man. The judge let her stay on the case. Bradley said it is common for lawyers to represent friends, and that may be true when it comes to speeding tickets and wills, but it is not common at all in child custody cases.
Bradley also said she appreciated judges listening to her oral arguments as an attorney where she could say things that weren’t in the written legal briefing. Yet in February, she left oral arguments early in a case so that she could be on time for a campaign speech to Wisconsin Manufacturers & Commerce, the state’s big-business lobby, a primary supporter of the politicians who control the other two branches of government and of her conservative colleagues on the court.
She wasn’t there to hear oral arguments in another case before the Supreme Court, but went ahead and voted on it anyway, the first case in which she participated. Earlier, the state Court of Appeals had suppressed evidence — a marijuana plant — that Kenosha police found after entering a locked bedroom without a search warrant. A 3-3 tie on the high court would have affirmed that ruling. Bradley wasn’t on the court when it heard oral arguments in the case, and she had abstained from several other decisions the court issued on cases heard before her appointment. However, Bradley voted with a 4-3 majority to overturn the appeals court’s decision. The defendant is now claiming that his rights to due process and equal protection were violated and that Bradley’s decision left the impression of bias since it favored law enforcement and her campaign is backed by the Milwaukee Police Association and Wisconsin Chapter for the Fraternal Order of Police.
Taken together, these examples reveal a person prone to questionable judgment who can be expected to add a fifth reliable vote to a majority that already backs the same special interests behind the other branches of government.
JoAnne Kloppenburg is not an ideal candidate. She has been a judge for only three and a half years. But she has heard hundreds of cases during that time. Although she is supported by Democrats and likely will vote more often than not with the two sitting liberal justices on the court, she promises she will be independent and will review each case on its legal merits. She was hired as a state’s attorney by a Republican attorney general and she served under attorneys general from both political parties for 23 years. So there is a fighting chance she will bring some of Crooks’ independence back to a court that sorely needs it.
And this is a fact: “I owe my judicial career to the people of Wisconsin,” Kloppenburg says. “My opponent owes her judicial career to Governor Walker.”
We hope citizens consider the need for a balance of powers in our government when they vote Tuesday.
We hope they ignore the special-interest attack commercials and do their own homework in making their decision.
And we urge experienced, high-minded judges — who believe in an independent judicial branch — to run for Supreme Court when the next opening arises.