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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
Schimmel 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 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 Essenberg.
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 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 that 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 imposing their policy
preferences, I thought that came off as being Judge Schimmel. 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 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 Schimmel 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 opponents 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 Schimmel 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. 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 equivalence 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 Schimmel 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. Rick Eisenberg
on that. Well, look, I think that the spending of money
on these judicial races, which has increased eventually 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.
I can answer Jeff's question about Brad Schimmel opposing something that he may have been favored
from a policy perspective. I've litigated high-profile cases in Wisconsin
for many years now, including when Brad Schimmel was attorney general. I run a conservative
litigation shop. Brad Schimmel 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 allow his personal preferences to get in the way. And there were a number
of cases in which, you know, he was opposed to the position that well-in-our-client
stuck. 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. Schimmel 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 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 healthcare 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, I will be decided by the current court
and, you know, I dislike this tendency in political campaigns to, you know, for people
to take a statement that are made by their opponent and claim that they know better what
the speaker than the speaker about what was said. He's explained his position. The
1849 law certainly was a valid enactment of law. It was the law of the state for 125 years.
It's quite clear that it 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 is 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 he asked 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 Schimmel 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 Judge has asked. Judge has
asked 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 a 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. 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 Shimmel has entered over and over where people
have gone on to commit new crimes. That's when you know the sentences fail. To some of the ads
people have seen about you judge Shimmel nine rape kits tested in your first two years of the
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 amount of time to a dangerous sex offender
weighs higher than protecting the community. That's what she just revealed. It is not what I said.
She has not 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 have done. And that's what those sentences did.
Judge Shimmel and 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
with the victim and the prosecutor recommended in every one of them. So all of that and not
withstanding that, Jeff, are sentences and criminal cases a good measure of fitness for 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. This is all of these attack ads. A lot of this
debate is really a side light 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 the judge's sentencing decisions might reveal something about
his or her judgment. But 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 a good policy in 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 particularly
exercised about these arguments about sentencing because I think it's very, very difficult in the
confines of campaign speech and campaign ads to get a handle on what actually happened in
these cases. Jeff Mandel, 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 Schimmel 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 Schimmel'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 Schimmel'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 Hasenberg, you now have a final word.
One of the things that always strikes me in the Supreme Court 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 Schimmel 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 can offer it will vote in the same way. All right. Rick Hasenberg, thanks very much.
Jeff Mandel, thank you. Thank you.
Well, 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 7th Circuit said, we don't like physicists. Why wouldn't
you let just judge? There's some truth in that. Yeah, there's the whole exercise is really weird.
Although it feels kind of like the, you know, this is the worst system possible except all
the others. I mean, I'm not sure that we'd be any happier if we were appointing people.
There doesn't, we don't seem to have come up with a good way to let judges make these,
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 to ask things, but we could 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.
Oh, thank you. Good to see you. Good action.
Thank you. Thanks.