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Could gender and geography trump ideology in Wisconsin high court race?

In most elections, suburban women are more of a force as voters than as candidates. But in Wisconsin Supreme Court races, they rule the ballot.

Over the past 25 years, female judges from Milwaukee suburbs have won every time they’ve run for the high court — a perfect five-for-five record.

That would seem to be a positive sign for Milwaukee County Circuit Judge Rebecca Dallet of Whitefish Bay in her race against Sauk County Circuit Judge Michael Screnock and Middleton attorney Tim Burns. The Feb. 20 primary will narrow the field to two for the April 3 general election to replace Supreme Court Justice Michael Gableman, who is not seeking re-election.

But two veteran observers — and the candidates themselves — caution against reading too much into the historical trend.

Milwaukee Magazine examined the backgrounds of the 33 candidates who ran a total of 47 times in 19 Supreme Court elections from 1993 through 2017. Much attention already has focused on how well women have performed in those races — far better than for most other elected offices, including other judgeships. Women won 13 of 19 times they ran for the high court, or 68% — more than three times the success rate of men, who won just six of 28 times, or 21%. As a result, women now hold five of seven Supreme Court seats, the highest proportion of any state.

But Milwaukee suburban female judges came out even better than other women. Their unbeaten streak started with Janine Geske, who was a Milwaukee County judge from Glendale when she was appointed to fill a 1993 vacancy, and who then was elected to a full term in 1994. It continued with Diane Sykes, a Milwaukee County judge from Bayside (appointed 1999, elected 2000); Annette Ziegler, a Washington County judge from West Bend (elected 2007, re-elected unopposed 2017); and Rebecca Bradley, a Milwaukee County judge from Wauwatosa (appointed 2015, elected 2016).

Despite that record, neither Geske nor University of Wisconsin-Milwaukee Professor Mordecai Lee believe suburban female judges have a lock on Supreme Court races. Geske, now a retired Marquette University law professor, says voters give greatest weight to judicial experience, while Lee, a former Democratic state legislator, argues that ideology has decided most recent court races.

Experience is clearly a major factor. Incumbents who had been previously elected to the court won re-election all nine times they ran, while appointed justices won five of their six bids for a first full term and lower court judges won five of their 19 races. By contrast, attorneys and law professors lost all 13 times they ran. In fact, every attorney who faced two or more judges was eliminated in the primary.

That trend would favor Dallet and Screnock over Burns. Screnock would get an added boost if, as rumored, Gableman steps down early to join President Donald Trump’s administration and Gov. Scott Walker appoints Screnock to fill out Gableman’s term.

Ideology, on the other hand, is not as precisely measured. Officially, Supreme Court races are nonpartisan, and most candidates — particularly sitting judges — insist that they approach every case on its merits, without any ideological bias.

Nonetheless, every contested high court race in recent years has been cast as a progressive-vs.-conservative matchup, with the candidates‘ leanings defined by their records, their supporters and often by outside groups’ attack ads. By that standard, the most clearly conservative candidate has won every contested race for either an open seat or a seat held by an appointed incumbent from 2000 on. Progressive victories have come only in the re-election campaigns of incumbent Justices Shirley Abrahamson and Ann Walsh Bradley.

As a result, Lee argues that suburban female judges won because they were conservatives. Sykes, Ziegler and Rebecca Bradley were all seen as conservatives, but Geske was viewed as a moderate — and Gov. Tommy Thompson took a little heat from his fellow Republicans for not appointing someone more conservative. However, Lee notes, Geske helped conservatives win a major victory by voting to uphold expansion of tax-supported vouchers to religious schools.

That conservative tide would benefit Screnock, who as a lawyer helped the GOP’s Walker defend Act 10, which stripped most public employee unions of most collective bargaining rights.

By contrast, Burns is running as an outspoken liberal, and he says “these (judicial) positions are inherently political.” He says Wisconsin voters prefer progressives, but wasn’t aware that similar campaigns led to primary defeats for Madison attorney Joel Winnig in 2011 and Milwaukee attorney Vince Megna in 2013.

Screnock senior adviser Sean Lansing calls Burns’ view of the judiciary “alarming … if not downright scary.” Lansing says Screnock sees judges as “impartial arbiters of the law, not political activists or policy analysts.”

Although Dallet is positioning herself as a moderate, Burns says she’s too conservative and Screnock backers paint her as a liberal, previewing likely attack ad themes if she faces either man in the general election. While recent Supreme Court races have varied in intensity, an open seat is almost certain to trigger a contentious, big-spending campaign.

Dallet says “special-interest money … appeared to buy justice, or buy a justice” when Gableman and former Justice David Prosser refused to recuse themselves from cases involving major campaign donors. She says she’s the only candidate with the values and experience “to repair this broken court.” And at this #MeToo moment in society, Dallet says she understands gender inequity not only from her years as a prosecutor and judge in cases of human trafficking, sexual assault and domestic violence, but also as a woman who has experienced sexual harassment. 

Lee believes ideology also explains why black judges lost all five times they ran, while Geske says rural voters don’t accept African-Americans as high court justices. Louis Butler, then a Milwaukee municipal judge, lost to Sykes in 2000; was appointed to the high court by Democratic Gov. Jim Doyle when Sykes moved up to the federal bench in 2004; then lost to the conservative Gableman in 2008, the first defeat of an incumbent justice in 41 years, after a brutal campaign that led to ethics charges against Gableman. Three black circuit judges were eliminated in primaries: Stanley Miller of Milwaukee, in 1996; Paul Higginbotham of Madison, in 2003; and Joe Donald of Milwaukee, in 2016.

This spring, each candidate is running not only against their opponents but against a Supreme Court trend. Burns would be the first attorney to defeat a sitting judge in at least 25 years; either Dallet or Burns would be the first candidate to beat a conservative for an open seat in more than 20 years and either Screnock or Burns would be the first man to best a suburban female judge in a quarter-century. No matter who wins, somebody’s going to make history.