A fiery debate produced this
week by WISN featured
the candidates in the high stakes
race for the Wisconsin Supreme
Court.
The conservative, Waukesha Circuit
Court Judge Brad Schimel versus
liberal Dane County Circuit Court
Judge Susan Crawford.
Tonight we unpack the showing with
two esteemed attorneys.
Conservative Rick Essenberg of the
Wisconsin Institute for Law and
Liberty and liberal I'm Jeff Mandel
with Law Forward and thanks for
being here.
Thank you for having us.
So I wanted to start by getting your
overall reaction of who
won. First to you, Rick Esenberg.
Well, look, I mean, I think that
there's a tendency in these debates
for people to watch them and
declare as the winner, the one that
they preferred going into
the debate.
I think that a lot of what was
talked about is somewhat
extraneous to the issues
that come before Supreme Court
justice. But I think as a general
matter, you have two
candidates with two very different
views of the law.
I think one is
far more likely.
to think that judges can impose
their policy preferences on
the rest of us, and
the other candidate is
less likely to believe
that that's a proper exercise of the
judicial function.
Jeff Mandel to that.
Well, I agree with Rick that a lot
of this seemed extraneous.
Based on what we saw in the debate,
if there's one candidate who is
more activist and
more interested in posing their
policy preferences, I thought that
came off as being Judge Schimel.
Among other things, he was unable to
articulate a single example of
a time that he had issued a decision
that didn't fit his ideological
preferences or those of his
supporters.
Any good lawyer or judge can think
regularly of times where the law
leads them in a direction they don't
want to go.
Let's take a look at some of what
came from the debate.
It was fast -moving, covered a lot
of ground, including the
extraordinary spending in
this race.
Elon Musk is spending big on Brad
Chimel, and he
counters that Susan Crawford is the
recipient of George Soros' money.
So let's listen to just one
exchange on this.
I want to note something about
donations in this race.
97 % of the donors to my
campaign are people who vote
right here in the state of
Wisconsin.
Almost 50 % of my
opponent's donors can't vote in
the state of Wisconsin because they
don't reside here.
I have support from all over
the country and it is because Elon
Schimel is trying to buy this race
and people are very upset about that
and they are disturbed about that.
He is spending over 10 million
dollars.
That dwarfs the contribution
of anybody else in
any campaign in Wisconsin.
history.
Jeff, do you think this kind of
partisan money in the race pollutes
the court?
I don't know if it pollutes the
court, but I'm not sure that it's
great for anybody.
This is the reality, but I
think that the kind of equivalences
that you're hearing drawn
here just don't exist.
Elon Musk is the world's richest
man, and he is outspending
everyone else.
Judge Schimel can say that 97
% of his donors are in Wisconsin,
but the vast majority of the money
that's supporting him is coming from
one place, and it's not here.
Oh, Rick Eisenberg on that.
Well, look, I think that
the spending of money
on these judicial rates, which has
increased exponentially in
the past 20 years, is a function of
courts involving themselves in
policy disputes and not sticking
to the law.
And this has been part of the Left
Progressive Legal Project since
before I began law school.
You know, I can answer, you know,
Jeff's question about Brad Schimel
opposing something that he may
have been.
favorite from a policy perspective.
You know, I've litigated high
profile cases in
Wisconsin for many years now,
including when Brad Schimel was
attorney general.
I run a conservative litigation
shop.
Brad Schimel often,
I think, agreed with us on
the policy perspective we brought to
the case, but understood
that as attorney general,
his duty was to defend the law and
not.
uh... allow his personal preferences
to get in the way and there are a
number of cases in which uh...
uh... you know he was opposed to
uh... the position that uh...
uh... we will in our clients there
Thank you for that, for that
circling back to that response
to Jeff.
Another big issue in the debate,
and now before Wisconsin
Supreme Court, is the 1849 abortion
law.
Both candidates are saying that the
other has made
public their positions.
Schimel slams Crawford for
representing Planned Parenthood,
while Crawford slams him for
saying the 176 -year -old
law is valid.
Let's listen to that.
I was asked if the 1849
was a valid law, 1849
law was a valid law. And that was a fail.
And the answer is, my answer was,
it was passed by two houses of the
legislature and signed by a
governor. That means it's a valid
law. But what I said
next was that there's a
real question as to whether that law
reflects the will of the people of
Wisconsin now and today.
If they are pregnant and something
goes terribly wrong in their
pregnancy, I don't want them to lie
bleeding on a hospital bed
while their doctors are huddled in
another room trying to decide if
they're close enough to death before
they can deliver health care
services to them.
So Rick, is abortion
a litmus test because won't
it be decided by the current court
before the newly elected justice
takes their seat or are there other
decisions to come?
well it will be decided by the
current court and you know
i i i dislike this tendency
in political campaigns uh...
to uh... near for people to take a
statement they're made but made by
their opponent and uh...
claim that they know better with
speaker and then the speaker about
what was said he's explained his
position the eighteen forty nine
lost certainly was a valid enactment
of law was a lot of the state for a
hundred twenty five years uh...
it quite clear That
is doesn't reflect
the majority sentiment in the state
of Wisconsin, and
it probably needs to
be changed. Now, the way that you do
that is not by
running to a court.
The Supreme Court, it's not the
Supreme Court's job.
The way that you do that is by going
to the legislature who
represent the people.
That's what democracy is
all about, and you ask them to
make the necessary changes.
Well, I guess what I would say is
that the, you know,
Rick is correct that it is our
legislature that makes laws.
But the problem is that what our
Supreme Court does is it interprets
laws and applies the Constitution.
And what I heard from Judge Schimel
is not that.
It's actually very similar to what
Rick was decrying earlier about
public policy because he said the
question now is whether the 1849
law reflects the current
views of Wisconsinites.
That is not a question judges ask.
Judges ask the question of what
does it say?
What does it mean and how does it
line up with the Constitution?
Interesting, so thank
you for that on abortion.
The other thing that we're seeing
all over the place, online,
on air, are these attack ads over
sentencing decisions.
So let's listen to
kind of a longer clip on
that.
In 2020, you did sentence a child
sex offender to four years in prison
after prosecutors requested 10.
Do you regret that sentence?
I don't regret that sentence because
I followed the law in that case,
as I always do.
I applied the law which says
that judges have to
consider every relevant factor in
sentencing. You have to consider
both the aggravating and mitigating
factors. as a judge.
And the Supreme Court has said, you
have to order the minimum amount of
prison time you believe is necessary
to protect the public.
That's what I did in that case and
every other case.
And my goal is always to
keep the community safe.
And those have been sentences that
have been successful.
They have kept the community safe,
unlike the short jail sentences that
Brad Schimel has entered over and
over where people have gone on
to commit new crimes.
That's when you know the sentence
has failed.
to some of the ads people have seen
about you, Judge Schimel, nine rape
kits tested in your first two years
as attorney general. Do you regret
that?
My opponent just revealed the
problem in her judgment, that in
weighing all the factors,
giving the minimum amount of time to
a dangerous sex offender.
That is what the law requires.
ways higher than protecting
the community, that's what she just
revealed to you.
That is not what I said.
And she has not found one case,
she hasn't found one case.
The court requires you to order the
sentence.
Go ahead.
the sentence necessary to protect
the community and that's what I've
done and that's what those sentences
did. go right ahead.
Judge Shimon on rape kits.
By the way, on her ads, she hasn't
found one case in her ads where
I failed to follow the wishes of
the victim and the prosecutor.
The sentences I gave were at
least what the victim and the
prosecutor recommended in every one
of them.
So all of that, and notwithstanding
that, Jeff, are sentences in
criminal cases a good measure of
fitness for a Supreme Court justice?
I don't think so.
This is something that circuit court
judges, that our trial court judges
spend quite a bit of time working
with, but it's really not what the
Supreme Court does.
And it is, as Rick said
earlier, really extraneous.
All of these attack ads, a lot of
this debate is really
a sidelight from what matters about
the court.
So Rick, what should voters make of
all of these attack ads, then, that
are focusing so heavily on
sentencing decisions?
Well, look, I think it's very, very
difficult for voters
who are non -lawyers to
understand the
role of a Supreme Court justice, and
I agree with Jeff.
The Supreme Court sentences no one.
I think the criticism
of a judge's sentencing decisions
might reveal something
about his her
judgment.
But, you know,
I think that the discussion that
we're having here, to some extent,
reflects the extraneous nature of
much of this debate.
The reason that it's
important to note that the
1849 law may not be supported
by most voters in the state
of Wisconsin, is that the way that
you fix that, the way that
you fix a law that is
not good policy
and the opinion of most voters,
is you go to the legislature, you
don't go to judges.
And similarly here, I
think that the best you can do with
discussion about sentencing is to
get some sense of
who these candidates might be as
a person. But To be honest
with you, I don't get...
uh... i don't get particularly
exercised about these arguments
about uh...
sentencing because i think it's very
very difficult in the
confines of campaign
each in campaign ads
to uh...
uh... to get a handle on what
actually happened in case
Jeff Mendel, I'll give you the final
word on all of this.
Well, I'll just say that I agree
with Rick that what you're looking
for is more about who a
judge is and what you learn about it
from that.
And the question is not the
sentences. The question is what we
took from the judges in their
responses. You heard Judge Crawford
talking about balancing the factors
that the law requires.
You heard Judge Schimel say, well, I
do what the prosecutor and the
victim want, that there's not that
kind of balance.
It really, it suggested to
me, it was one of several moments in
the debate, that suggested to me
that notwithstanding Judge Schimel's
rhetoric that we want an objective,
fair -minded judge.
that that is not necessarily what he
says elsewhere, whether it's when
his attorney general, he sued to try
to end Obamacare, whether it's
talking about being a support
network for President Trump, whether
it is asking Elon Musk to put in
money and then saying, oh, well, I
have no control over what he says.
Over and over and over, Judge
Schimel's record really suggests
that he's not the kind of objective
jurist that he correctly says
is what we need on the Supreme
Court.
I take it back, Rick Hessenberg,
you now have a
final word.
You know, one of the things that
always strikes me in these Supreme
Court races is that I know these
people and I hear them described
in ways that doesn't reflect
who they are in reality.
As I mentioned earlier, Brad Schiml
often took a legal position contrary
to Will, even if he agreed with our
policy position.
I heard him speak about it many,
many times. I've known him for a
long time. I think he is
a fair and objective
jurist.
And I think that he
also believes in
law that he thinks it's an
exercise in interpretation
and construction and not
simply the imposition of policy
preferences. I think the current
majority sees things differently,
and my suspicion is that
he will vote in
the same way.
All right, Rick Hasenberg, thanks
very much.
Jeff Mandel, thank you.
issues.
in the race, I was like, okay, well,
here we are, 10 minutes,
and two experts.
No, you are both really good.
Thank you.
Well, you know,
Judge Posner used to be a judge in
the Seventh Circuit said, we don't
elect physicists.
Why wouldn't we elect? What'd you say?
judge.
truth in that.
The whole exercise is
really weird, although it feels
kind of like this
is the worst system possible except
all the others. I'm not sure that
we'd be any happier if we were
appointing people.
We don't seem to have come up with a
good way to
choose judges, in part because
as you say, Rick, the
consequences and the things that we
as a society ask of our courts these
days are just tremendous.
Yeah, well, one solution,
Jeff, would be not ask things, but
we can talk about that some other
time.
Oh, I think we could each
lob some of those at each other.
We've each got some of those.
Well, thank you both very much.
Enjoy Florida.
Thank you. Good to see you.
Good action.