For a while, Wisconsin Supreme Court campaigns seemed to have become the Judicial Division of the Ultimate Fighting Championship.
First came the hard-hitting 2007 match between Annette Ziegler and Linda Clifford, running up the campaign spending score to an eye-gouging $5.8 million. Next was the no-holds-barred 2008 bout between Louis Butler and Michael Gableman, with attack ads pummeling their way to a new record of nearly $6 million. That was followed by the savage 2011 brawl between David Prosser and JoAnne Kloppenburg, climaxing in a split decision and lengthy recount, with spending only slightly below that of the Ziegler-vs.-Clifford card.
But in between came the far quieter 2009 contest between Chief Justice Shirley Abrahamson and Jefferson County Circuit Judge Randy Koschnick, when the incumbent threw nearly all the televised punches as she and her allies spent the vast majority of the race’s $2.1 million price tag. The same thing happened in 2013, when Justice Patience Roggensack dominated Marquette University law professor Ed Fallone in their $2.2 million duel.
So far, this year’s tangle between Justice Ann Walsh Bradley and Rock County Circuit Judge James Daley has followed the 2009 and 2013 pattern. But Bradley and other observers warn it could still heat up in the final days before the April 7 election, as did the Butler-Gableman melee.
Five elections. Three all-out wars. Two low-profile skirmishes. Which leads to the question: Who and what decides whether a Supreme Court campaign will be bitterly fought or barely noticed?
The “who” is not the candidates. In four of the last five races, outside organizations outspent all general-election and primary candidates combined. Only Abrahamson marshaled more dollars than did special interests in her race against Koschnick.
That has left the tone and volume of most campaigns under the control of such organizations as Wisconsin Manufacturers & Commerce (WMC) and the Club for Growth Wisconsin on the right and the Greater Wisconsin Committee and the Wisconsin Education Association Council (WEAC) on the left. Each group decides how a particular Supreme Court candidate or campaign fits into its agenda.
In 2007 and 2008, the top agenda item for WMC was reversing what the state’s largest business lobbying group saw as an anti-business trend in the court’s rulings. After conservative Justice Diane Sykes moved up to the federal appeals bench and former Democratic Gov. Jim Doyle appointed Butler to replace her in 2004, liberal jurists took over the majority on the seven-member court. They rattled the business community with pro-consumer rulings in key cases involving medical malpractice and liability for lead poisoning. Ziegler, a former Washington County circuit judge, defeated Madison attorney Clifford to win the seat vacated by conservative Justice Jon Wilcox, and Gableman, a former Burnett County circuit judge, ousted Butler, shifting the majority back into conservative hands.
Then, in 2011, the future of public employee unions topped the agenda for WEAC, the state’s largest teachers’ union, and other pro-labor forces. Republican Gov. Scott Walker and the GOP-controlled Legislature had ended most collective bargaining for most public-sector unions. Unseating the conservative Prosser would have returned liberals to the high court majority, where they might have overturned the labor law. But Kloppenburg, then an assistant attorney general, narrowly fell short.
In theory, both sides could have continued their struggle through every other high court race. Prosser’s victory, however, showed just how hard it can be to unseat an incumbent — even when the issues at stake are spurring massive protests.
Butler, the state’s first African-American justice, was an incumbent, too. But he was vulnerable, having lost to Sykes nearly 2-to-1 in 2000. And as a former assistant public defender, he was a natural target for the “soft on crime” attack ads that substitute for debate about the real issues — including a misleading Gableman ad that drew comparisons to the infamous “Willie Horton” ad of the 1988 presidential race.
Besides, even special interests only have so much money. And if they’re spending heavily on other races — like Walker’s 2010 and 2014 campaigns and 2012 recall — that leaves less for court campaigns.
But even if this year’s race remains quiet, don’t expect Supreme Court races to stay that way. Next year, the seat of Justice N. Patrick Crooks, a centrist who frequently votes with the liberal bloc, is up for election. If Crooks, 76, decides not to seek another 10-year term — or if he’s forced out by a legislative push for a retirement age that would also knock off the 81-year-old Abrahamson — Wisconsin voters could have a ringside seat to yet another round of judicial fisticuffs.