The race for Wisconsin Supreme Court began in earnest Tuesday with a fiery debate between three contenders marked by allegations of corruption and insufficient experience.
In a February primary, at least three candidates for the state’s highest court will compete for two spots on April’s general election ballot: incumbent conservative-backed Justice Daniel Kelly and liberal-backed Marquette Law School professor Ed Fallone and Dane County Circuit Court Judge Jill Karofsky. State Supreme Court justices serve for 10 years.
The Madison debate, the first time all three candidates met in a public forum, included allegations of corruption directed toward Kelly and claims that neither Karofsky’s criminal law experience nor Fallone’s study of the U.S. Constitution were sufficient for them to serve as a justice.
Wisconsin Supreme Court races are nonpartisan in name only. While candidates don’t run with a party designation next to their names, partisan groups spend heavily to support their preferred candidate.
The stakes in next year’s Supreme Court race are much lower than they could have been if conservative-backed Justice Brian Hagedorn had lost in April’s election. Hagedorn’s victory gave conservatives 5-2 control of the court, guaranteeing they will dominate at least until 2023.
Even if Kelly loses next year, conservatives still will control the court by a 4-3 margin.
Even so, the race undoubtedly carries political and legal weight.
In her remarks on Tuesday, Karofsky accused Kelly of creating the perception of corruption by siding with his conservative political donors in the cases he hears.
“It just defies logic that every time a group that has a conservative interest, that has a Republican interest, comes before the court, that you are always able to find in their favor,” Karofsky told Kelly. “It just defies logic that the law is always on their side.”
Kelly defended himself, saying he decides each case according to the law and a rigorous exercise of logic, irrespective of the decision’s effect on politics.
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“I don’t judge the result of a case according to a political lens,” Kelly said. “I judge it according to what the law requires. Logic doesn’t care about your personal opinions.”
Fallone, who previously ran for the Supreme Court in 2013, tore into Kelly for different reasons, arguing that he too frequently goes out of his way to reinterpret constitutional law.
“The problem with Justice Kelly on the court is he is an ideologue who follows his own pet theories of constitutionalism, his own idiosyncratic originalist view,” Fallone said. “He thinks he’s a one-man constitutional convention.”
Kelly responded by arguing it’s the Supreme Court’s role to correct precedent if needed.
Fallone, who if elected would be the first Latino and the first non-sitting judge in nearly 40 years to be elected a state Supreme Court justice, said he would bring a diverse perspective to the court, and would act with modesty and humility.
Kelly made his case against Karofsky and Fallone during the forum at the Madison law office of Foley & Lardner, arguing his breadth of experience is unmatched in the race, knocking Fallone for having limited experience in Wisconsin courts and Karofsky for having limited experience outside criminal law.
The three judicial candidates bring a variety of experiences. Kelly was appointed to the court in 2016 by former Republican Gov. Scott Walker to fill a vacancy created by former Justice David Prosser’s retirement. He spent most of his career in private practice.
Karofsky won a seat on the Dane County Circuit Court in 2017, defeating Shorewood Hills Municipal Judge Marilyn Townsend.
She was an assistant and deputy district attorney in the Dane County District Attorney’s Office from 1992 to 2001. For nine years after that, she was the director of education and later the 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.
Fallone ran once before for the Supreme Court in 2013. Prior to teaching law at Marquette University, he worked as an attorney specializing in civil and business law.