Frederica Freyberg:
A fiery debate produced this week by WISN featured the candidates in the high stakes race for the Wisconsin Supreme Court. The conservative Waukesha Circuit Court Judge Brad Schimel versus liberal Dane County Circuit Court Judge Susan Crawford. Tonight, we unpack the showing with two esteemed attorneys: conservative Rick Esenberg of the Wisconsin Institute for Law and Liberty and liberal Jeff Mandell with Law Forward. And thanks for being here.

Rick Esenberg, Jeff Mandell:
Thank you for having us.

Frederica Freyberg:
So I wanted to start by getting your overall reaction of who won. First to you, Rick Esenberg.

Rick Esenberg:
Well, look, I mean, I think that there’s a tendency in these debates for people to watch them and declare as the winner the one that they preferred going into the debate. I think that a lot of what was talked about is somewhat extraneous to the issues that come before a Supreme Court justice, but I think as a general matter, you have two candidates with two very different views of the law. I think one is far more likely to think that judges can impose their policy preferences on the rest of us, and the other candidate is less likely to believe that that’s a proper exercise of the judicial function.

Frederica Freyberg:
Jeff Mandell, to that.

Jeff Mandell:
Well, I agree with Rick that a lot of this seemed extraneous. Based on what we saw in the debate, you know, if there’s one candidate who is more activist and more interested in posing their policy preferences, I thought that came off as being Judge Schimel. Among other things, he was unable to articulate a single example of a time that he had issued a decision that didn’t fit his ideological preferences or those of his supporters. Any good lawyer or judge can think regularly of times where the law leads them in a direction they don’t want to go.

Frederica Freyberg:
Let’s take a look at some of — sorry — at some of what came from the debate. It was fast moving, covered a lot of ground, including the extraordinary spending in this race. Elon Musk is spending big on Brad Schimel, and he counters that Susan Crawford is the recipient of George Soros money. So let’s listen to just one exchange on this.

Brad Schimel:
I want to note something about donations in this race. Ninety-seven percent of the donors to my campaign are people who vote right here in the state of Wisconsin. Almost 50% of my opponent’s donors can’t vote in the state of Wisconsin because they don’t reside here.

Susan Crawford:
I have support from all over the country, and it is because Elon Schimel is trying to buy this race, and people are very upset about that, and they are disturbed about that. He is spending over $10 million. That dwarfs the contribution of anybody else in any campaign in Wisconsin history.

Frederica Freyberg:
Jeff, do you think this kind of partisan money in the race pollutes the court?

Jeff Mandell:
I don’t know if it pollutes the court, but I’m not sure that it’s great for anybody. This is the reality but I think that the kind of equivalencies that you’re, that you’re hearing drawn here just don’t exist. Elon Musk is the world’s richest man, and he is outspending everyone else. Judge Schimel can say that 97% of his donors are in Wisconsin, but the vast majority of the money that’s supporting him is coming from one place. And it’s not here.

Frederica Freyberg:
Rick Esenberg, on that.

Rick Esenberg:
Well, look, I think that the spending of money on these judicial races, which has increased exponentially in the past 20 years, is a function of courts involving themselves in policy disputes and not sticking to the law. And this has been part of the left progressive legal project since, you know, before I began law school. You know, I can answer, you know, Jeff’s question about Brad Schimel opposing something that he may have then favored from a policy perspective. You know, I’ve litigated high profile cases in Wisconsin for many years now, including when Brad Schimel was attorney general. I run a conservative litigation shop. Brad Schimel often, I think, agreed with us on the policy perspective we brought to the case, but understood that as attorney general, his duty was to defend the law and not allow his personal preferences to get in the way. And there were a number of cases in which, you know, he was opposed to the position that WILL and our clients took.

Frederica Freyberg:
Thank you for that, for that circling back to that response to Jeff. Another big issue in the debate and now before Wisconsin’s Supreme Court is the 1849 abortion law. Both candidates are saying that the other has made public their positions. Schimel slams Crawford for representing Planned Parenthood, while Crawford slams him for saying the 176-year-old law is valid. Let’s listen to that.

Brad Schimel:
I was asked if the 1849 was a valid law. 1849 law was a valid law, and the answer is — my answer was it was passed by two Houses of the legislature and signed by a governor. That means it’s a valid law. But what I said next was that there’s a real question as to whether that law reflects the will of the people of Wisconsin now and today.

Susan Crawford:
If they are pregnant and something goes terribly wrong in their pregnancy, I don’t want them to lie bleeding on a hospital bed while their doctors are huddled in another room trying to decide if they’re close enough to death before they can deliver health care services to them.

Frederica Freyberg:
So Rick, is abortion a litmus test because won’t it be decided by the current court before the newly elected justice takes their seat, or are there other decisions to come?

Rick Esenberg:
Well, it will be decided by the current court. And, you know, I dislike this tendency in political campaigns too, you know, for people to take a statement that are made by their opponent and claim that they know better what the speaker — than the speaker about what was said. He’s explained his position. The 1849 law certainly was a valid enactment of law. It was the law of the state for 125 years. It’s quite clear that it doesn’t reflect the majority sentiment in the state of Wisconsin, and it probably needs to be changed. Now the way that you do that is not by running to a court, the Supreme Court. It’s not the Supreme Court’s job. The way that you do that is by going to the Legislature who represent the people. That’s what democracy is all about. And he asked them to make the necessary changes.

Jeff Mandell:
Well, I guess what I would say is that the, you know, Rick is correct, that it is our Legislature that makes laws. But the problem is that what our Supreme Court does is it interprets laws and applies the Constitution. And what I heard from Judge Schimel is not that. It’s actually very similar to what Rick was decrying earlier about public policy, because he said the question now is whether the 1849 law reflects the current views of Wisconsinites. That is not a question judges ask. Judges ask the question of what does it say? What does it mean, and how does it line up with the Constitution?

Frederica Freyberg:
Interesting. So thank you for that on abortion. The other thing that we’re seeing all over the place online, on air are these attack ads over sentencing decisions. So let’s listen to a kind of a longer clip on that.

Interviewer:
In 2020, you did sentence a child sex offender to four years in prison after prosecutors requested ten. Do you regret that sentence?

Susan Crawford:
I don’t regret that sentence because I followed the law in that case…

Interviewer:
Judge-

Susan Crawford:
… as I always do. I applied the law which says that judges have to consider every relevant factor in sentencing. You have to consider both the aggravating and mitigating factors, and the Supreme Court has said you have to order the minimum amount of prison time you believe is necessary to protect the public. That’s what I did in that case, and every other case. And my goal is always to keep the community safe. And those have been sentences that have been successful. They have kept the community safe, unlike the short jail sentences that Brad Schimel has entered over and over, where people have gone on to commit new crimes. That’s when you know the sentence has failed.

Interviewer:
To some of the ads people have seen about you, Judge Schimel, nine rape kits tested in your first two years as attorney general. Do you regret that?

Brad Schimel:
My opponent just revealed the problem in her judgment. That in weighing all the factors, giving the minimum amount of time…

Susan Crawford:
That is what the law requires.

Brad Schimel:
… to a dangerous sex offender weighs higher than protecting the community, that’s what she just revealed to you.

Susan Crawford:
That is not what I said.

Brad Schimel:
And she has not found one case …

Susan Crawford:
The court, the court…

Brad Schimel:
… she hasn’t found one case …

Susan Crawford:
The court requires you to order the sentence …

Brad Schimel:
Why don’t you go ahead. Go right ahead.

Susan Crawford:
… the sentence necessary to protect the community. And that’s what I have done. And that’s what those sentences did.

Interviewer:
Judge Schimel on rape kits?

Brad Schimel:
By the way, on her ads. She hasn’t found one case in her ads where I failed to follow the wishes of the victim and the prosecutor. The sentences I gave were at least what the victim and the prosecutor recommended in every one of them.

Frederica Freyberg:
So all of that, and notwithstanding that, Jeff, are sentences in criminal cases, a good measure of fitness for Supreme Court justice?

Jeff Mandell:
I don’t think so. This is something that circuit court judges that are trial court judges spend quite a bit of time working with, but it’s really not what the Supreme Court does. And it is, as Rick said earlier, really extraneous. This is — all of these attack ads, a lot of this debate, is really a sidelight from what matters about the court.

Frederica Freyberg:
So, Rick, what should voters make of all of these attack ads then, that are focusing so heavily on sentencing decisions?

Rick Esenberg:
Well, look, I think it’s very, very difficult for voters who are non-lawyers to understand the role of a Supreme Court justice. And I agree with Jeff. The Supreme Court sentences no one. I think the criticism of a judge’s sentencing decisions might reveal something about his or her judgment. I don’t get particularly exercised about these arguments about sentencing, because I think it’s very, very difficult in the confines of campaign speech and campaign ads to get a handle on what actually happened in these cases.

Jeff Mandell:
Well, I’ll just say that I agree with Rick that what you’re looking for is more about who a judge is and what you learn about it from that. And the question is not the sentences. The question is what we took from the judges in their responses. You heard Judge Crawford talking about balancing the factors that the law requires over and over and over. Judge Schimel’s record really suggests that he’s not the kind of objective jurist that he correctly says is what we need on the Supreme Court.

Rick Esenberg:
I think he is a fair and objective jurist, and I think that he also believes in law, that he thinks it’s an exercise in interpretation and construction and not simply the imposition of policy preferences. I think the current majority sees things differently, and my suspicion is that Susan Crawford will, will vote in the same way.

Frederica Freyberg:
All right. Rick Esenberg, thanks very much. Jeff Mandell, thank you.

Rick Esenberg, Jeff Mandell:
Thank you.