Buying a Judge

by Phil Anderson

A good work of fiction can contain a lot of truth. This is the case with a John Grisham novel I recently read. The Appeal tells a fictional, but very believable, story about the buying of a state supreme court justice. In Wisconsin a similar plot occurred in real life. Last year an unqualified, but politically connected conservative Supreme Court justice was purchased.  

The gist of the novel is that a chemical company loses a law suit over poisoning a small town's water supply and causing a cancer cluster. The billionaire CEO vows never to pay a dime to the victims and hires a shady “consulting” firm to get a compliant judge elected to the the state supreme court. The bad guys recruit an unknown, photogenic candidate and spend millions to market him to the voters and defeat the “liberal” incumbent. The chosen candidate is unqualified but has marketable “family values” and the conservative “judicial philosophy” to be a safe vote for cases about corporate malfeasance. The novel realistically describes how the election is won using huge amounts of hidden corporate money, attack ads, and misinformation on the opponent. The voting public is riled up with red herring issues about god, guns, and gays and how liberal judges are destroying family values. The bad guys win. The bought judge casts the tie breaking vote to kill the appeal, the town gets no money to clean up their water, and people continue to die of cancer.  

It is well known that conservative, corporate interests have been pouring money into state and local judicial elections to buy business friendly judges. They have had considerable success and now many state courts have a majority of conservative judges. The last two Wisconsin supreme court elections, despite being nominally non-partisan, were battles between partisan groups spending unprecedented amounts of money to buy the election. The liberals were successful in 2018 and the conservatives won in 2019. Wisconsin's supreme court currently is controlled by a 5-2 conservative majority. This year's election is expected to be another similar battle.        

Incumbent Justice Daniel Kelly, who was appointed by Governor Scott Walker in 2016, must stand for election this year. Two other candidates, Marquette Law School professor Ed Fallone, and Dane County Circuit Court Judge Jill Karofsky, are running. Because the court is non-partisan, all three will be on the February 18th primary ballot. Two of the three will advance to the general election on on April 7th.  

Justice Kelly is the conservative candidate. His judicial experience is the 3½ years on the supreme court. Prior to that he was in private practice doing commercial law. He also represented the Wisconsin Republican Party in several law suits regarding gerrymandering and campaign finance issues. He is a graduate of Carroll University (a religious school in Wisconsin) and Regent University Law School (another religious school founded by tele-evangelist Pat Robertson). He is a member of the conservative Federalist Society which advocates far right interpretations of law and the U.S. Constitution. His campaign web site indicates his judicial philosophy is solidly in keeping with Federalist Society views. His web site lists three endorsements – all current or former conservative Wisconsin Supreme Court justices.  

Judge Jill Karofsky was elected to the Dane County Circuit Court in 2017. She is a graduate of Duke University and has a law degree from the University of Wisconsin. She was an assistant and deputy district attorney in the Dane County District Attorney’s Office from 1992 to 2001. For nine years she was the director of education and general counsel for the National Conference of Bar Examiners. She also served as Violence Against Women prosecutor and as head of the Office of Crime Victim Services for the state Department of Justice. Her campaign web site list numerous endorsements from other judges, lawyers, law enforcement officers, elected officials, and community leaders across the state.  

Professor Ed Fallone has taught law at Marquette University in Milwaukee for 25 years. He earned BA and a JD law degrees from Boston University graduating with honors. He has worked in private practice in addition to teaching law. He has extensive experience in charitable and local social advocacy work. His campaign web site has an impressive sampling of his writings on many legal issues. He is certainly the most scholarly of the candidates. His endorsements include judges, lawyers, elected officials and and community leaders.    

One of these three candidates will win a 10 year term on the court. The question is which one will best serve the people of Wisconsin? Most court cases have little impact on the rest of society. They are about routine, narrow issues related to a particular lawsuit involving personal and business issues. But some cases have serious impacts on many people's lives. In the future the Wisconsin Supreme Court may decide whether women must have unwanted babies, workers may be restricted in improving their working conditions, people can be treated unfairly because of religion or sexual preferences, or people's right to vote can be restricted (a real case, currently before the court, involves 200,000 people being purged from voter registration lists). As in the novel, they may decide that company profits are more important then safe drinking water for your children.    

The Wisconsin Democracy Campaign says spending on the 2019 supreme court race was an unprecedented $8.2 million. This was up $1 million from the 2018 race. The two candidates in 2019 spent a record $3.7 million. Another $4.5 million was spent by individuals and groups trying to elect a judge compatible with their political views. In the absence of strong campaign finance laws (something conservative Republicans oppose) the blatant buying of elections is to be expected.  

So it behooves voters to think about who is buying what judge and what the impact might be on their lives. Voters SHOULD be concerned with the political views of potential judges. This is WHY we have elected rather than appointed judges. Voters should remember that ALL judges are human and their rulings are affected by their education, experiences, and beliefs despite claims of impartiality. I wrote about this prior to the 2018 supreme court election (Google Duluth Reader “Supremely Important Election April 3rd”) In the real world judges, like all politicians, are going to “dance with him who brung ‘em.”  

Will the next justice dance with you, and people like you, or with their corporate, big money donors? Vote for your best interests on February 18 and again April 7.