An Opening on the Supreme Court

There’s an open seat on the Wisconsin Supreme Court and it’s an opening in more ways than one.

Justice Rebecca Bradley announced last week that she won’t seek another ten year term on the court. That’s probably because the conservative saw the writing on the wall. Liberal Democrats have won the last two court races and each by a wide margin. The problem for conservatives is that they’ve become the party of Donald Trump. When he’s on the ballot his voters show up. When he’s not they don’t. Simple as that.

In making her announcement, Bradley said that, “Wisconsin has seen only the beginning of what is an alarming shift from thoughtful, principled judicial service toward bitter partisanship, personal attacks, and political gamesmanship that have no place in court.”

That has to be among the most hypocritical statements I’ve ever read. Bradley was highly partisan and bitterly personal in her attacks on her colleagues. She even voted to consider overturning the 2020 presidential election results at Trump’s bidding. There’s one phrase to sum up Bradley’s decision not to run: good riddance.

But here’s the problem. Right now we don’t have a really good replacement for her. The only announced candidate is Chris Taylor, a court of appeals judge with her own highly partisan background. Taylor was among the most liberal and strongly partisan members of the Legislature, representing Madison’s east side. Before that she ran Planned Parenthood of Wisconsin.

Taylor, like the two liberals elected to the court in the last two years, sees the court as essentially a super legislative branch. She’ll vote on major issues that come before the court as public policy matters rather than as legal questions. That’s what legislators do, but this is deadly for the integrity of the judicial branch. They’re supposed to be the umpires, but now it’s as if the umps are wearing the uniforms of the teams on the field.

To be fair to Taylor, she still could get my vote if she made a case that, as a judge, she ruled against parties that she had previously supported as a legislator or as an activist. But she’s not likely to talk about that because, in this heavily polarized environment, the last thing she wants to do is send a signal to liberal constituencies that she would be anything less than predictable. The whole game right now is to mouth platitudes about how impartial you’re going to be while at the same time winking and nodding toward partisan interest groups that you’re in their camp.

Bradley, of course, would have been no better. Frankly, I was planning on just not voting in protest over my choices next April. But now with Bradley gone, there’s at least some slim chance that we’ll have a choice of a nonpartisan jurist on the ballot.

The chance is slim because these races have become partisan contests in all but name. For all intents and purposes the Democrats nominate someone (in this case Taylor) and the Republicans nominate their candidate. So, essentially, we’re now waiting for the GOP to offer up their replacement for Bradley. And given the reality of Trump’s party, it’s almost impossible to imagine that they won’t come up with somebody who is just as crazy as she is.

But if they put up someone like Justice Brian Hagedorn I’d consider voting for that candidate. Hagedorn bolted from the conservatives, who had the majority at that point, to join the three liberals in rejecting that case (the one that Bradley voted to accept) that could have led to overturning the results in that 2020 election. He’s way more conservative than I am, but he seems to understand what his job is. I’ll vote for a principled conservative over a liberal hack every time.

Because of his independence, Hagedorn is reviled in Republican circles, so I can’t see how someone like him could get the party’s endorsement. This is why we need some organized third force in Wisconsin politics. My own solution is a Moderate Democratic Party, organized not as a true third party, but as a subset of the Democrats. That party could get behind a highly qualified, nonpartisan candidate and offer them up as an alternative to Taylor.

But barring that, I’m not optimistic. Bradley is gone and that is good, but it’s more likely than not that the conservative candidate who replaces her will be every bit as awful. And in that case I’ll be back to sitting it out next April.