>> The following program is a PBS Wisconsin original
production. >> Justice is no longer blind in
Wisconsin Supreme Court. That's what's at stake.
>> He is paying good lip service to the principles of
impartiality and open mindednes. >> Candidates spar during the
only debate in the race for the Wisconsin Supreme Court.
>> To this esteemed committee, you must stop debating the
humanity. [MUSIC]
>> And a tense nine hour hearing over gender affirming care for
minors boils over. >> Hey.
[MUSIC] Tonight on "Here& Now", we break
down the Supreme Court debate with legal experts. Then trans
issues are foisted into the spotlight in national and local
politics. And what cutting the U.S. Department of Ed will mean
for schools in Wisconsin. It's "Here& Now" for March 14th.
>> Funding for "Here& Now" is provided by the Focus Fund for
Journalism and Friends of PBS Wisconsin.
>> 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,
thank you. Thank you. >> Thank you.
>> The spring election is April 1st. In the debate, you heard
the topic of rape kits. Next week on this program "Here&
Now". Zac Schultz reports on the background of that controversy.
And hears from both Brad Schimel and Susan Crawford on the issue
tonight. More from the candidates in this election that
will determine the balance of the court with this excerpt from
Zack's reporting. >> One of the other cultural
flashpoints that we're going through as a country right now
has to do with trans rights in your estimation, do trans people
have any specific protections under the law? Are they a
protected class? Do they get any other category of protection
when it comes to them being singled out as a group?
>> You know, that is a question where if a case came in front of
me, that was making an argument about the rights of transgender
people or making a claim that they'd been discriminated
against or something like that, I would have to look at the law
and see what protections were available, and hear out what the
attorney's arguments were both for and against those kinds of
protections. Obviously, look at the facts to see what was
happening in that case. And then make a decision based on what I
thought, the facts and the law required.
nothing specific in state or federal law that gives them any
protected status. want to answer that specific,
specific question because I haven't researched it and I
can't make a blanket statement that there are no such
protections without actually looking at the law to make that
determination. >> Under the law, they're not in
a particular protected class. No, but in a courtroom, in the
justice system, you don't have to be in a protected class to
enjoy, to enjoy our constitutional rights. You know,
I, I do name changes. Every Monday morning is when we hold
name change hearings. And I have it's routine that I have
individuals who have transitioned or are
transitioning, want to change their names. I respect them for
that decision, and I make those name changes as a matter of
routine. I've even had some cases where they've gone or
gender change operation and want to change their birth
certificate. The law provides that they can do that. That's
what the law provides. My personal opinions have nothing
to do with that. If they meet the standards under the law,
they deserve the respect of the court and they deserve to have
their rights granted to them. [MUSIC]
>> Hey. >> Tensions roiled at the state
Capitol during nine hours of testimony over a bill that would
ban gender affirming treatments like hormones or surgery for
anyone under the age of 18. It reflects a national trend that
has pushed transgender issues into the political spotlight.
Despite less than 1% of the population identifying as trans
“Here& Now” student journalist Jane McCauley heard from the
perspective of someone who is trans about the repercussions of
this climate on the trans community.
>> It's difficult to know that there that those conversations
are happening, and it's difficult to feel so powerless.
It's difficult to have people talking about your identity like
it's something to be feared or hated or boxed away, hidden.
>> 24 year old be identifies as queer and trans.
>> My identity is something beautiful and to be celebrated.
That stark difference is difficult to live with.
>> B uses both he and they pronouns and has chosen to
conceal their identity and name on account of their safety,
their daily life is shifting under the new presidential
administration. male and female.
>> Within a week of being in office, President Trump issued
executive orders banning trans people from women's sports. The
military, and defunding youth. Gender affirming care.
>> When your government doesn't want you to exist, it is scary
and it is a heavy burden. I exist exactly as I am, and
Donald Trump doesn't get a say in that.
>> Questioning trans rights at all levels has been an issue.
Republicans have been running on for the last few years. It
helped propel Trump to the white House.
he's not defining for America, for government policy, that, you
know, there are two genders, you know, men and women. He's moving
to protect women from having to compete against male athletes,
from having biological males invade their their locker rooms
and other private spaces, their bathrooms. So, you know, I
certainly appreciate that. That's something that I think is
also very popular. That's what the American people support.
>> The general public is told a lot about trans people, and very
little of it is told by trans people.
>> Abigail Swetz is executive director of Fair Wisconsin, an
LGBTQ plus advocacy group based in Madison.
>> And that is striking to me because of the fact that that
creates a not only like an absence of knowledge, but an
absolute misunderstanding of the reality of the lived experience
of trans people. >> Fair Wisconsin is looking
toward policy protections for trans rights at all levels.
>> The local avenue. The school board Avenue, the State Avenue.
Those are open, and we will go down that road.
>> It's difficult to know that there that those conversations
are happening and it's difficult to feel so powerless.
>> It also, again, just confirms that this is not about any
particular issue that folks have with trans people. It's just
about removing trans people from from society.
>> Therapists like Colten Schoenike are ready to provide
support and resources. Coltan is transgender and nonbinary and
uses they them pronouns. Their practice is based in the small
city of Menominee, where access to LGBTQ providers is already
limited. the big city to access that.
We've been thinking about, you know, people having increased
demand, increased need, also trying to be thoughtful about
people, you know, not dropping off if they start to feel
hopeless. hotlines have spiked. One
hotline seeing a 700% jump after Election day be remembers
needing that community support. >> Being able to see trans
adults not only surviving, but thriving in adulthood and loving
their lives and the people that they became, gave me hope for my
own future. >> I also do not think you need
to know every detail of someone's identity to respect
them as people. >> If you're not getting hit by
the stones thrown at us, you're not standing close enough.
>> I am scared beyond belief for the future of trans rights in
this country, for the future of trans people in this country. I
am also stubbornly hopeful that trans people and our allies will
come together and will resist every attempt to strip us of our
rights and our humanity. >> Reporting from Menominee and
Madison. I'm Jane McCauley for "Here& Now".
>> The U.S. Department of Education this week announced it
would lay off 1300 employees, effectively decimating its
staffing. Wisconsin is one of 20 states that has joined a lawsuit
challenging the Trump administration over this move.
And to, quote, stop the dismantling of the agency. To
understand the impact, we're joined by Suzanne Eckes,
professor of education, law, policy and practice at the
UW-Madison School of Education. Thanks very much for being here.
>> Thanks so much for the invitation.
>> So as an education policy expert, what is your reaction to
cutting nearly half of the staff at the U.S. Department of
Education? quite an impact on the U.S.
Department of Education as a whole. And then specific
departments, whether it's related to the group that's
working on financial aid or the office for Civil Rights. Over
the years, Congress has enacted many statutes, federal laws
authorizing additional functions of the U.S. Department of
Education. So, for example, federal loans for college
students under title for Pell Grants, the Fafsa form for
financial aid. They oversee title one funds. That provide
schools with high numbers of low income students additional
funding, special education and civil rights enforcement. That's
just to name a few of the areas that will be affected by these
large numbers of layoffs in this last week.
>> So what will those large number of layoffs or possibly
shutting the Department of Education down altogether mean
in Wisconsin? >> So when you are a parent or a
family that feels that you have a student in the public school
system, that maybe is experiencing harassment,
bullying, disability discrimination, race
discrimination, the office for Civil Rights was a way for
families to file a complaint for free, and then the office for
Civil Rights, one of these regional offices, usually
Wisconsin, would work with the Chicago office, which is now not
functional, would perform an investigation to ensure that the
civil rights of students were being protected in a school
setting. So last year alone, there were 23,000 complaints to
the office for Civil Rights complaints by families and
parents. Most of those 23,000 involve students with
disabilities, and that's an increase of 18% from the
previous year. So there are still some functioning offices
for office for civil rights, but it's going to cause quite a
backlog and stall these parents who are seeking advice and
assistance with these pretty serious civil rights matters.
>> So I know that the Trump administration has said that
they would like to move some of the functions or all of the
functions from the Department of Education back to the States.
Can Wisconsin absorb that? >> Well, that's interesting. So
they talk about moving a lot of the tasks to the states. But
there's also been a lot of discussion about moving some of
the functions of the U.S. Department of Education to
places like Health and Human Services or the U.S. Department
of Justice. One issue that you have from shuttering the U.S.
Department of Education, and whether you're moving it to the
state level in Wisconsin or you're moving it to HHS or to,
let's say, the Department of Justice is do these agencies
have the expertise that the U.S. Department of Education had? I
believe you're losing some a lot of that expertise around. For
example, I've used the example previously around students with
disabilities that presumably people who work in the U.S.
Department of Education in that area have an understanding of
that very complex area of law. >> So the multi-state lawsuit
that Josh Kaul signed on to over cuts to the Department of
Education, asserts that it takes an act of Congress to dismantle
the agency. But how much havoc do these actions, lawsuits,
judicial, you know, temporary injunctions and rescissions, you
know, wreak on the people doing the work?
>> It really alleges that these layoffs are incapacitating the
U.S. Department of Education to function. It is severely harming
these 20 states education system. So that is one of the
main arguments. But to be fair, the U.S. Secretary of Education
has always been authorized to allocate reallocate functions
among the officers of the department and to establish and
alter this organizational entity. They have the right to
manage federal personnel. But I think what this litigation or
this lawsuit is alleging is whether these cuts pretty severe
cuts, have really exceeded the executive powers when it comes
to the authority in the U.S. Department of Education. And I
think this is going to play out in litigation, much like we've
seen some of the other cuts. >> Indeed, professor Suzanne
Eckes, thanks very much. >> Thank you.
issues facing Wisconsin, visit our website at PBS Wisconsin.
Org and then click on the news tab. That's our program for
tonight. I'm Frederica Freyberg. Have a good weekend.
[MUSIC] >> Funding for "Here& Now" is
provided by the Focus Fund for Journalism and Friends of PBS
Wisconsin.