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Analysis

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
Wisconisin
Henryk Sadura/Getty

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)