Supreme Court Justice Rebecca Bradley and state Appeals Court Judge JoAnne Kloppenburg say they will fairly and impartially apply the law, and neither will answer questions about their opinions on specific issues or cases.
But the candidates for Wisconsin Supreme Court acknowledge differences in judicial philosophy, and experts say voters going to the polls Tuesday will need to look at other cues to determine who’s a better fit for a 10-year term on the state’s highest court.
Those cues include experience and background, judicial role models, and the political leanings of their supporters.
“You’ve got (Bradley who) has client-based experience and kind of a civil, business kind of background, whereas (Kloppenburg) has been in the public arena doing attorney general work and doing environmental work,” said former Supreme Court Justice Janine Geske. “I think their experience bases are different, their temperament is different.”
Bradley’s two decades of practicing law and implementing business transactions is a resume “often not seen on the Supreme Court.”
Bradley also has been a judge for about three years, on the circuit court in Milwaukee and on the state’s appeals court — a more typical route to the high court. She was appointed to those positions, and to the Supreme Court last fall by Gov. Scott Walker.
Kloppenburg has spent most of her time in the public arena as an assistant attorney general and doing environmental work and has been a state appeals court judge for three years, too. Geske said Kloppenburg’s experience arguing before the court gives her “that perspective of the importance of arguments.”
In recent weeks, the campaign has focused Bradley’s writings as a Marquette University student 24 years ago in which she called AIDS patients and homosexuals degenerates, compared abortion to the Holocaust and slavery, and wrote that an author legitimately suggested women play a role in date rape. Bradley has repeatedly apologized for what she wrote about AIDS patients and homosexuals.
Geske said though the comments were made a long time ago, they are relevant to the 2016 campaign because they revealed “more than an opinion on those issues.”
Still, Bradley holds a 5-point lead over Kloppenburg according to a Marquette Law School Poll released last week, slightly outside of the 4.1 percentage point margin of error. But the poll of 957 likely voters showed one in six are still undecided.
Voters are also being bombarded with millions of dollars worth of advertisements from the candidates and third-party groups. The conservative Wisconsin Alliance for Reform has spent more than $1.5 million backing Bradley, while the liberal Greater Wisconsin Committee has spent at least $345,000 on behalf of Kloppenburg, according to campaign watchdog group Justice at Stake.
Supreme Court races are nonpartisan, but contests generally fall along party lines.
Role models, support
Legal experts also cite the candidates’ differences in naming judicial role models.
Bradley has named former U.S. Supreme Court Justice Antonin Scalia and current justices Samuel Alito and Clarence Thomas, all of whom routinely have voted together as conservatives. Kloppenburg has named Sonia Sotomayor and Ruth Bader Ginsburg, both reliably in the liberal wing of the Supreme Court, and Anthony Kennedy, a Ronald Reagan appointee considered a swing vote on the court.
Scalia, Alito and Thomas adhere to a strict interpretation of the constitution and law based on the original intent as each was written, said Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty. Bradley would likely follow that philosophy, he said.
Madison lawyer Lester Pines, who frequently argues before the state Supreme Court and represented the unions that unsuccessfully challenged Gov. Scott Walker’s Act 10 collective bargaining law, said many of the cases that come before the state Supreme Court are matters where the law is ambiguous.
So the broader issue surrounding the candidates is not their judicial philosophy but whether the candidates will make decisions in lockstep with their political backers.
Pines said in one recent case during negotiations of a settlement, the opposing side told him it would appeal the case to the state Supreme Court and have the state’s business lobby file amicus briefs on its behalf. Wisconsin Manufacturers & Commerce has spent heavily in the past decade to help elect a more conservative court.
“When lawyers are using that in the course of settlement negotiations, that’s the perception on the ground — that the court as it’s currently constituted will respond to the outside interests who believe they control the court,” Pines said.
Bradley has been appointed three times in as many years by Walker to judgeships. Kloppenburg also has applied for three judicial appointments under former Gov. Jim Doyle and under President Barack Obama.
Law enforcement endorsements
Law enforcement endorsements are considered key in Supreme Court races.
Jim Palmer, executive director of the Wisconsin Professional Police Association, said the group’s decision to endorse Kloppenburg was, in part, because of Bradley’s unwillingness to discuss cases that could have provided evidence of her judicial philosophy or knowledge of criminal law.
He said the board has historically placed greater weight on the candidates’ experience and knowledge of criminal law.
“When Bradley appeared before our board, she proved herself totally incapable of offering anything to demonstrate her knowledge, experience, or her judicial philosophy,” he said. “Frankly, it was a little embarrassing.”
Meanwhile, Kloppenburg “performed exceptionally and was able to discuss the standards of law that are applied by the courts on various law enforcement and labor-related issues,” said Palmer.
Andy Opperman, vice-president of the Wisconsin Fraternal Order of Police board, said his group endorsed Bradley because her “views aligned quite significantly with the Fraternal Order of Police.”
“She talked about not legislating from the bench and she basically talked about her experience at every level of the justice system,” he said.
Opperman said Bradley empathized with officers who feel law enforcement officers are “under attack” after high-profile shootings of unarmed black men by police officers, including two in Wisconsin since 2014.
“She’s very in support of law enforcement as far as us being under attack as of the last year,” he said.
“She basically said she felt we were under attack and she was in support of law enforcement, and just saying that alone is huge.”
He said Kloppenburg didn’t respond to the group’s survey that helped inform their endorsement.
Judicial rulings explored
Asked what cases provide evidence for their judicial philosophies, Kloppenburg’s campaign pointed to a 2012 decision affirming a circuit court decision denying arbitration against a woman who was suing a nursing home where her husband died, and a 2015 decision in which she was part of a panel of judges that dismissed citations against protesters at the Capitol during Act 10.
Bradley’s campaign didn’t respond to a request for examples of decisions that provide evidence for her judicial philosophy. But Bradley said in a March forum that a 1989 opinion written by Scalia best exemplifies her approach.
In that case, Scalia upheld a person’s right to burn the American flag despite Scalia’s personal opposition to doing so. Bradley often says her philosophy is to interpret the law as it’s written and not how she personally wishes it would read.
State Journal reporter Matthew DeFour and the Associated Press contributed to this report.