- In tonight's "Closer Look," Justice Annette Ziegler was
unopposed in her race for a second ten-year term on the
Wisconsin Supreme Court.
It's the first time since 2006 that no challenger emerged, and
many judicial observers believe some of the best candidates for
the court simply are not willing to run.
"Here and Now's" Zac Schultz reports.
- The Supreme Court of the state of Wisconsin
is now in session.
- The Wisconsin Supreme Court is technically a nonpartisan
body.
That's why the justices are elected in the nonpartisan
spring elections to ten-year terms that should insulate them
from partisan politics across the capitol.
But judicial observers say over the last decade, those
safeguards have become mere technicalities and the
partisanship that defines the fall elections has spread to the
spring.
- The judicial branch in general has become far more
politicized.
- The more partisan our elections get the more
irrelevant they become to whether or not the best judges
are seated in these most important seats on the Supreme
Court.
- Kendall Kelley and Richard Sankovitz are both respected
circuit court judges who have been approached by groups asking
them to run for the Supreme Court.
But in the end, they've both declined.
It's not that they didn't want to serve.
It's that they didn't want to run.
- I think that judges are getting more and more
uncomfortable with the idea of running for those higher
offices, in part because when it comes to getting involved in a
race that's bound to be dominated by partisan forces, we
are fish out of water.
- The rise in partisanship has been a decade in the making.
In 2005, the Wisconsin Supreme Court issued a few decisions
that angered the business community, especially Wisconsin
Manufacturers and Commerce, the state's largest business lobby.
In 2007, there was an open seat on the court and Annette Ziegler
faced Linda Clifford.
- Probably the first time that a Wisconsin Supreme Court
election wasn't conducted in the usual gentlemanly manner,
if I can use that term.
- Clifford says early in the campaign she learned WMC planned
to spend millions to support Ziegler.
- Linda Clifford has zero experience putting criminals
behind bars.
- We saw millions of dollars from interest groups, locally
and nationally, coming into that election for the first time.
And as much as we tried to prepare for it, it was pretty
overwhelming.
- WMC declined to comment for this story.
In 2008 a win by a conservative swung the balance of the court.
Justice Louis Butler had been appointed to the court by
Democratic Governor Jim Doyle.
No incumbent justice had been defeated in four decades and it
appeared no one wanted to challenge Butler.
- It took a long time in 2008 for a challenger to emerge to
take on the incumbent that year.
- Judge Sankovitz was approached and said no.
Judge Kelley was approached as well.
- I was concerned that the process turned out exactly as I
would have feared.
- Eventually Judge Mike Gableman got in the race.
- And the challenger who came out was not reputed as one of
the best judges in the state, was not known by many judges in
the state and did not run a race based on experience or the
ability to command the things a Supreme Court justice should
command.
- Gableman ran an ad that opponents described as racist
and misleading and even his supporters called distasteful.
- Louis Butler worked to put criminals on the street.
Like Rubin Lee Mitchell who raped an 11-year-old girl
with learning disabilities.
Butler found a loophole.
Mitchell went on to molest another child.
- WMC spent more than $2 million on attack ads.
- Call Justice Louis Butler.
Ask him to deliver justice, not loopholes.
- Gableman won by 20,000 votes.
Judge Kelley says he's glad he wasn't the candidate.
- I didn't want to be part of the advertising campaign,
intentionally or unintentionally, that I thought
harmed the very work that we do.
- It didn't get better.
In 2011, Justice David Prosser's race against JoAnne Kloppenburg
became a proxy vote on Scott walker's Act 10 bill.
- Tell David Prosser judges should be independent,
not a rubber stamp for Scott Walker.
- That race ended with a recount.
- But JoAnne Kloppenburg says she's not tough on crime.
- 2016 saw another Walker proxy vote when his appointee Rebecca
Bradley defeated Kloppenburg again.
- She may be right for Scott Walker but she's too extreme for
our Supreme Court.
- Judge Sankovitz says Supreme Court election ads are dominated
by criminal issues.
- The issue is fighting crime and putting victims first.
- Which are a small part of what the court decides.
- That frustration, that futility that a judge faces in
deciding to jump into a race where the judge knows that the
issues that really count won't be discussed keeps a lot of
people out of the race.
- Not everyone agrees there's a problem.
- I think we have a very good court.
- Andrew Hitt was Justice Ziegler's first law clerk at the
Supreme Court.
He says there are two simple reasons she had no challenger.
The first is respect.
- You have a wide swath of practicing lawyers that really
respect her work and the contributions she has made to
the court.
- The second reason is philosophy.
Like Ziegler, Hitt is a member of the Federalist Society, a
conservative legal group.
He says conservative judges wouldn't challenge a sitting
conservative.
They're more likely to reach the court by getting appointed to an
open seat by Governor Walker.
- Is there going to be an opening?
Is there a chance at an appointment?
- That makes sense when you consider 11 people applied for
the open seat on the court last year that eventually went to
Justice Dan Kelly.
But no one of those 11 decided to run against Justice Ziegler a
few months later.
- More often the case it probably comes down to judicial
philosophy.
- Andrew Hitt doesn't discount the notion of Supreme Court
races being ugly and expensive or the impact of Wisconsin
Manufacturers and Commerce and other third-party interest
groups.
But he says the impact ends on election day.
- Does that electoral impact or the fact that they spent some
money, does that impact how any of them decide?
I would say for all seven of them the answer is definitively
no.
- We have an incredibly compromised and ethically bereft
Supreme Court.
- Scot Ross is the executive director of One Wisconsin Now, a
progressive advocacy group.
He says the Supreme Court's partisan elections result in
more than a loss in credibility.
- Got five judges basically that do the bidding of corporate
special interests and Governor Walker's republican agenda, top
to bottom, every single time.
- Ross says the evidence is in Supreme Court decisions on
controversial issues like Act 10, voter id and stopping
the John Doe investigation, a case where WMC was under
investigation for possible illegal election coordination
with Governor Walker's campaign.
- They bought a "Get out of jail free" card when it came to
the John Doe investigation because they stopped the
investigation.
- WMC has had an impact on elections, but I guess I would
say that to those people who think they've bought and paid
for a court, it sounds good in the movies, but it's not
reality.
- But if WMC hasn't paid for results, why have they spent
millions trying to get conservatives elected to the
court?
- What likely motivated WMC was we want a court, they want a
court that respects the role of the judiciary and adheres to the
proper role of the court.
- And if the court is so corrupted, why did no one
challenge Justice Ziegler?
- Now, some folks have said if you couldn't beat Rebecca
Bradley, why would anybody get into the race?
- Ross says the liberal anger against Donald Trump could have
made the difference.
- There's a huge progressive pushback and somebody, I think,
missed a real golden opportunity to take on Annette Ziegler and
potentially take her out of office.
- Many observers think there are not as many progressive
judges in Wisconsin simply because there's no one to
appoint them to the bench.
- The fact is right now most of our justices don't get there by
election.
They are appointed in the middle of a term to replace another
justice and then stand for election later on.
- In six years, Governor Walker has made 65 judicial
appointments, meaning 25% of the judiciary was handpicked by him,
including the last two Supreme Court justices.
Republican governors have been jump-starting the careers of new
judges for 22 of the last 30 years.
In fact, both of the judges in our story first reached the
bench through appointment.
Judge Sankovitz by Governor Tommy Thompson and Judge Kelly
by Governor Scott McCallum.
Since 1975, ten of the 17 Wisconsin Supreme Court justices
were appointed.
All of which leads Judge Sankovitz to ask why are we
still electing Supreme Court justices at all?
- If you had judges appointed by a fairly independent body
or at least a body that was balanced
when it came to partisanship.
- But conservatives like Andrew Hitt are just fine with the
current system.
- I think the sunshine and the speech from both sides is where
we get the best results.
- And even progressives like Scot Ross aren't onboard.
- I'm one of those people that I like to see somebody who's
making decisions that affect my life be directly accountable to
me at the ballot box.
But I can understand why people might have a different
perspective on that.
- Judge Kelly doesn't know if moving everything to
appointments would help.
- I'm not sure how you un ring the bell.
I don't know that I've ever read about any process
that's apolitical.
- So that leaves one option, convincing the best candidates
to run for office.
Otherwise Judge Sankovitz fears the candidates we do get won't
be able to avoid the stain of partisan politics.
- If good judges are not going to get into these races, it
might open the door to people who are not good judges, but who
are willing to take partisan positions and by doing so they
might win support from these outside interests.