Whom to vote for today

The only election of 2019 (thank God) is today.

I start with an unusual confession of sorts. I almost never vote in races where there is only one candidate on the ballot. I also rarely vote for liberals.

I am violating — more accurately I violated, since I voted Friday to foil anyone who would seek to take away my vote by killing, injuring or kidnapping me — both of these rules by voting for Jennifer Nashold for the state Court of Appeals District 1 seat on the ballot.

In the People’s Republic of Madison, there is a mayoral race that is too bizarre to believe anywhere but in Madison. Mayor-for-Life Paul Soglin is the preferred candidate by the few non-liberals that exist in Madison because his opponent, Satya Rhodes-Conway, is an even less desirable candidate than Soglin. Faced with that decision, I’d move. (I did, of course, in 1988.)

The Madison School Board includes only two candidates worthy of anyone’s vote — Kaleem Caire, who believes minority school children should not be stuck with bad schools (he started one), and David Blaska, who the thought police have failed to eject from Madison despite their best efforts (including, in Blaska’s case, threats). Each represents a challenge to the status quo that has resulted in Madison schools’ slipping from arguably the best in the state when I was in school to now …

… schools that are actually worse than the state average, but as an added bonus school board meetings disrupted by people who oppose police in schools because they apparently are OK with allowing unruly students to ruin the educational experience for everyone. If I lived in Madison I would vote for Caire and Blaska and then move.

The race that really counts, of course, is the state Supreme Court, which features a choice between a professional Democrat who interprets the laws as she wants, and someone who doesn’t.

First, James Wigderson:

When Dane County Judge Richard Niess swept away the laws passed during the December Extraordinary Session of the legislature not only did he knock out the laws that were passed, he voided the 82 appointments made by former Governor Scott Walker that were approved by the state Senate.

An Appeals Court issued a stay on Wednesday, reinstating the laws that were passed. However, some damage was done, and we’re waiting to see if Wisconsin will be allowed to withdraw from the lawsuit against the Affordable Care Act, commonly referred to as Obamacare, as Evers and Attorney General Josh Kaul announced before the stay was issued.

But also hanging in limbo are the appointments made by Walker. While they (and most reasonable people) may have assumed that the Appeals Court order meant that they could go back to work, the Evers Administration actually had security prevent Public Service Commission (PSC) member Ellen Nowak from returning to work. Nowak, who has a long and distinguished career of public service, was prevented from entering the building because Evers is claiming that he rescinded the appointments before the stay and therefore his decision stands to not have Nowak serve.

It was an really outrageous act by Evers, and we hope that the matter will eventually be resolved with Nowak returning to work without being barred by armed guards.

Wisconsin deserves better than this constitutional crisis cooked up by Evers and a Dane County judge. The cases surrounding the Extraordinary Session will end up in the Wisconsin Supreme Court who will have to decide if, as the Constitution says, the legislature sets its own rules on when it can meet.

A Democratic majority on the Wisconsin Supreme Court would mean that Dane County judges, not the state legislature, will write the laws of Wisconsin. However, if we keep a conservative majority on the Supreme Court by voting to elect Judge Brian Hagedorn on Tuesday, then we assure that whatever chaos Evers and his Dane County judicial allies stir up will eventually be overturned and the rule of law will prevail.

If you haven’t voted yet, we cannot stress enough the importance of voting on Tuesday.

Next, C.J. Szafir:

For 10 years, at least a majority of the Wisconsin Supreme Court has generally remained committed to the rule of law and faithful to the text of the Constitution. But when one considers what a more activist judiciary would look like, it’s easier to fully appreciate the stakes for Tuesday’s election to the Wisconsin Supreme Court between Judge Brian Hagedorn and Judge Lisa Neubauer.

In 2006, Judge Diane Sykes of the U.S. 7th Circuit Court of Appeals gave a seminal lecture to Marquette Law School reviewing a recent term of the Wisconsin Supreme Court. The Court’s majority had recently authored a major decision expanding tort liability for businesses, specifically permitting lawsuits against lead paint manufacturers even if the plaintiff could not identify the business that manufactured the paint causing injury. Their other opinions changed state law to remove the state’s cap on non-economic damages in medical malpractice cases and reinterpreted the Constitution to penalize law enforcement by mandating suppression of evidence if police failed to give Miranda warnings.

Sykes concluded that the Court’s judicial philosophy was “pure unvarnished result-oriented” and their decisions were akin to “impos[ing] its own solutions to what it perceives to be important public policy problems—civil and criminal—rather than deferring to the political process.”  

Similar critiques were echoed nationally. As a result of the Court’s decisions, the Wall Street Journal Editorial Board blasted Wisconsin as a “favorite trial lawyer destination” and one that would “soon have every trial lawyer in America descending on the state.”

In 2008, Judge Michael Gableman beat incumbent Justice Louis Butler, flipping the ideological balance of the Court and ushering in a more judicially “restrained” (some may say “conservative”) majority, which focused less on policy outcomes and more on the text of the statute and Constitution. This majority was strengthened in 2016 with the election of Justice Rebecca Bradley and appointment of Justice Dan Kelly on the Court by Governor Scott Walker. Originalism and textualism became more mainstream.

Yet, had the 2008 or 2016 (and other elections) gone differently, the last decade of Wisconsin Supreme Court jurisprudence would likely have rolled back a number of conservative priorities. To appreciate the importance of judicial philosophy, one only needs to only look at the dissents of Justice Shirley Abrahamson – who’s legacy Neubauer supports. Consider:

Act 10: Walker’s historic collective bargaining reform law had to survive a number of legal challenges. Once in the Wisconsin Supreme Court, it was finally upheld on a strong 5-2 vote. But Abrahamson dissented, essentially arguing that unions had some sort of constitutional right to organize, something that is completely unfounded in the Wisconsin Constitution.

Concealed Carry: In a case about interpreting the concealed carry law, the Wisconsin Supreme Court in 2017 held that the City of Madison had no authority, under state law, to ban firearms on buses. From a judges’ standpoint, it was a clear case; state law prohibited cities from passing ordinances restricting someone’s ability to carry a firearm than what was enacted in state law. The City of Madison had clearly done so. Yet Abrahamson disagreed and if the dissent held the day, municipalities would have had an easier time to carve out exceptions to the Concealed Carry laws.

Voter ID: Walker and the Republicans in the legislature signed a voter ID law that requires voters to show photo identification when they go to the polls. After a legal challenge, the Wisconsin Supreme Court upheld the law. Once again, Abrahamson led with a vigorous dissent, comparing the majority’s decision to “Jim Crow”, even though Wisconsin’s voter ID law is commonplace and burdens with obtaining a photo ID not onerous.

School Choice: While not in the last decade, I would be remiss not to point out Abrahamson’s dissent in a 1998 Wisconsin Supreme Court case that upheld the constitutionality of the Milwaukee school voucher program. Had her ideology carried the day, the school voucher program would unlikely exist, at least in its current form. Neubauer on the campaign trail would not comment on her thoughts about the Establishment Clause and constitutionality of school choice. More on this here.

Fast forward to today. There’s no question that a Wisconsin Supreme Court full of judicial activists would send Wisconsin back generations, chipping away – or flat out reversing – a number of conservative priorities and Walker reforms. When judges insert their own policy preferences – instead of the text of the constitution and statute – we get “pure unvarnished result-oriented” decisions. The importance of the Constitution is diminished. The separation between the legislature and judiciary blurs.

This is why when Wisconsinites go to the polls on Tuesday April 2, they should first read about the candidates’ judicial philosophy (or watch the recent Marquette University Law School debate) to determine for themselves which candidate will be faithful to the text of the constitution and the law, regardless of their political beliefs.

Since today’s winner will replace Justice Shirley Abrahamson, the mix on the court won’t change if Hagedorn loses. A Hagedorn loss, however, would not only be a voter mistake like all of the statewide elections were last November, it would prove that a majority of state voters are religious bigots who hate conservative Christians and fail the U.S. Constitution’s Article V, clause 3, that states, “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Cast the right votes today, if you haven’t already.



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