>> 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 Esenberg of the Wisconsin
Institute for Law and Liberty and liberal Jeff Mandell 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 a
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 Mandell to that. >> Well, I agree with Rick that
a lot of this seemed extraneous based on what we saw in the
debate. You know, if there's one candidate who is more activist
and more interested in opposing 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.
>> But let's take a look at some of sorry 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 Schimel, 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 that
dwarfs the contribution of anybody else in any campaign in
Wisconsin history. 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 equivalencies that
you're 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.
>> Rick Esenberg on that. >> Well, look, I think that the
spending of money on these judicial races, 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, you know, 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 favored 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 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 Will and our clients took.
>> 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 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 dislike this tendency in
political campaigns to, you know, for people to take a
statement that are made but 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. 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 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 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 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 ten. Do you regret that sentence?
>> I don't regret that sentence because I followed the law in
that case, judge, 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 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 weighs higher than protecting the
community, that's what she just revealed.
>> To you? It is not what I said.
The court hasn't found. One case.
sentence. >> The sentence necessary to
protect the community. And that's what I have done. And
that's what those sentences did. >> Judge Schimel on on rape kit.
>> 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 R
sentences in criminal cases, a good measure of fitness for
Supreme Court justice. >> I don't think so. This is
something that circuit court judges that are 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, 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 or
her judgment. 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. >> 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 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 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 Susan Crawford will will vote in the same way.
>> All right. Rick Esenberg, thanks very much. Jeff Mandell,