Wisconsin’s Most Expensive Supreme Court Election in a Decade

The race highlighted the need for modernized judicial recusal rules — and possibly even larger changes to how states select judges.

April 10, 2019

Last Tuesday’s Wisconsin Supreme Court election, which Judge Lisa Neubauer conceded just today to Judge Brian Hagedorn, was the most expensive the state has seen since at least 2008. In the race that saw Hagedorn narrowly defeat Neubauer to replace a retiring justice, the candidates and outside groups raised or spent more than $6 million combined, according to state filings, and the spending was almost as evenly divided as the final vote totals. This included more than $2.7 million spent on TV ads alone.

Why was there so much money on the table for this nonpartisan race? The outcome of the election, together with another race in April 2020 for the seat of Walker-appointee Justice Daniel Kelly, had the potential to flip the ideological balance on the court to the left for the first time in a decade. This likely would have affected how the court decided cases ranging from the 2020 redistricting cycle to disputes between the newly-elected Democratic governor and the majority-Republican legislature. Instead, Hagedorn’s victory expands the court’s conservative majority to 5-2 and locks in that majority until at least 2023.  

Surprisingly, the near-record spending leading up to this week’s race poured in even as some of the state’s perennial big-spenders opted to remain on the sidelines. The conservative groups that sat out the race — Wisconsin Manufacturers & Commerce, the U.S. Chamber of Commerce, and the Wisconsin Realtors Association (WRA) — did so primarily because of the anti-LGBT views that came through in Hagedorn’s blog posts, speeches, and his role in co-founding a private school that prohibits LGBT students and faculty. Hagedorn’s blog posts also called Planned Parenthood a “wicked organization” and the NAACP “a disgrace to America.” As a result, the WRA requested that Hagedorn return its $18,000 contribution and explained that Hagedorn’s views “directly conflict with the principles of our organization and the values of our members.”

Even with these groups sitting out, others filled the spending void. The Republican State Leadership Committee’s Judicial Fairness Initiative (RSLC-JFI), a national group that has long sought to influence who sits on state supreme courts across the country, dropped $1.3 million in TV, internet, mail, and radio ads “over the last week of the campaign to turn out low propensity, conservative voters and persuade undecided swing voters” to support Hagedorn, according to a celebratory RSLC press release. The RSLC founded JFI, which has the mission of electing “state-level conservatives to the judiciary,” when it grew frustrated that “bold conservative solutions,” were “running into a hard stop with judges.” Meanwhile, Neubauer received nearly that much support from the Greater Wisconsin Committee, a regular player in Wisconsin Supreme Court elections with labor union backing. Still other outside groups on both sides, such as the Koch-funded Americans for Prosperity and Planned Parenthood of Wisconsin, spent six-figure sums.

Neubauer and Hagedorn also raised more for their own campaigns than any other recent candidates — at least $3 million total.

This influx of spending elevated judicial recusal, when judges step aside from case involving significant conflicts on interest, as a central campaign issue for the second Wisconsin election in a row. At a pre-election debate, both candidates said they would consider stepping aside from cases involving major political allies — Hagedorn from cases involving his former boss, then-Governor Scott Walker, and Neubauer from lawsuits brought by the National Democratic Redistricting Committee, a group founded by former U.S. Attorney General Eric Holder, which pledged to support her candidacy with $350,000.

This discussion also led to calls for Wisconsin to strengthen its notoriously weak recusal rules so that they reflect the reality of today’s big money judicial elections. The leaders of the Wisconsin chapters of the League of Women Voters and Common Cause wrote in an op-ed that “[f]airness, impartiality and common sense” demand that “[i]f a plaintiff or defendant before a judge has provided that judge a campaign contribution (or spent money in the judge’s behalf or against the judge’s opponent)…the judge should step aside.”

Wisconsin has seen high-cost judicial elections for more than a decade — and has been at the forefront of national trends that include growing spending and the growing role of nontransparent outside groups in state supreme court races across the country. With the attention on state supreme courts growing, these races may only become more politicized, risking courts’ ability to both be and appear independent. Modernized recusal rules, and possibly even larger changes to how states select judges such as adopting an accountable appointment system or lengthy single terms, may be necessary to insulate courts from the worst effects of these spending trends.  

(Image: Chad Warpinski/EyeEm)