Frederica Freyberg:

In tonight’s “Closer Look,” Justice Annette Ziegler was unopposed in her race for a second ten-year term on the Wisconsin Supreme Court. It’s the first time since 2006 that no challenger emerged, and many judicial observers believe some of the best candidates for the court simply are not willing to run. “Here and Now’s” Zac Schultz reports.

Clerk:

The Supreme Court of the state of Wisconsin is now in session.

Zac Schultz:

The Wisconsin Supreme Court is technically a nonpartisan body. That’s why the justices are elected in the nonpartisan spring elections to ten-year terms that should insulate them from partisan politics across the capitol. But judicial observers say over the last decade, those safeguards have become mere technicalities and the partisanship that defines the fall elections has spread to the spring.

Kendall Kelley:

The judicial branch in general has become far more politicized.

Richard Sankovitz:

The more partisan our elections get the more irrelevant they become to whether or not the best judges are seated in these most important seats on the Supreme Court.

Zac Schultz:

Kendall Kelley and Richard Sankovitz are both respected circuit court judges who have been approached by groups asking them to run for the Supreme Court. But in the end, they’ve both declined. It’s not that they didn’t want to serve. It’s that they didn’t want to run.

Richard Sankovitz:

I think that judges are getting more and more uncomfortable with the idea of running for those higher offices, in part because when it comes to getting involved in a race that’s bound to be dominated by partisan forces, we are fish out of water.

Zac Schultz:

The rise in partisanship has been a decade in the making. In 2005, the Wisconsin Supreme Court issued a few decisions that angered the business community, especially Wisconsin Manufacturers and Commerce, the state’s largest business lobby. In 2007, there was an open seat on the court and Annette Ziegler faced Linda Clifford.

Linda Clifford:

Probably the first time that a Wisconsin Supreme Court election wasn’t conducted in the usual gentlemanly manner, if I can use that term.

Zac Schultz:

Clifford says early in the campaign she learned WMC planned to spend millions to support Ziegler.

TV announcer:

Linda Clifford has zero experience putting criminals behind bars.

Linda Clifford:

We saw millions of dollars from interest groups, locally and nationally, coming into that election for the first time. And as much as we tried to prepare for it, it was pretty overwhelming.

Zac Schultz:

WMC declined to comment for this story. In 2008 a win by a conservative swung the balance of the court. Justice Louis Butler had been appointed to the court by Democratic Governor Jim Doyle. No incumbent justice had been defeated in four decades and it appeared no one wanted to challenge Butler.

Richard Sankovitz:

It took a long time in 2008 for a challenger to emerge to take on the incumbent that year.

Zac Schultz:

Judge Sankovitz was approached and said no. Judge Kelley was approached as well.

Kendall Kelley:

I was concerned that the process turned out exactly as I would have feared.

Zac Schultz:

Eventually Judge Mike Gableman got in the race.

Richard Sankovitz:

And the challenger who came out was not reputed as one of the best judges in the state, was not known by many judges in the state and did not run a race based on experience or the ability to command the things a Supreme Court justice should command.

Zac Schultz:

Gableman ran an ad that opponents described as racist and misleading and even his supporters called distasteful.

TV announcer:

Louis Butler worked to put criminals on the street. Like Rubin Lee Mitchell who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.

Zac Schultz:

WMC spent more than $2 million on attack ads.

TV announcer:

Call Justice Louis Butler. Ask him to deliver justice, not loopholes.

Zac Schultz:

Gableman won by 20,000 votes. Judge Kelley says he’s glad he wasn’t the candidate.

Kendall Kelley:

I didn’t want to be part of the advertising campaign, intentionally or unintentionally, that I thought harmed the very work that we do.

Zac Schultz:

It didn’t get better. In 2011, Justice David Prosser’s race against Joanne Kloppenburg became a proxy vote on Scott walker’s Act 10 bill.

TV announcer:

Tell David Prosser judges should be independent, not a rubber stamp for Scott Walker.

Zac Schultz:

That race ended with a recount.

TV announcer:

But Joanne Kloppenberg says she’s not tough on crime.

Zac Schultz:

2016 saw another Walker proxy vote when his appointee Rebecca Bradley defeated Kloppenburg again.

TV announcer:

She may be right for Scott Walker but she’s too extreme for our Supreme Court.

Zac Schultz:

Judge Sankovitz says Supreme Court election ads are dominated by criminal issues.

TV announcer:

The issue is fighting crime and putting victims first.

TV announcer:

Which are a small part of what the court decides.

Richard Sankovitz:

That frustration, that futility that a judge faces in deciding to jump into a race where the judge knows that the issues that really count won’t be discussed keeps a lot of people out of the race.

Zac Schultz:

Not everyone agrees there’s a problem.

Andrew Hitt:

I think we have a very good court.

Zac Schultz:

Andrew Hitt was Justice Ziegler’s first law clerk at the Supreme Court. He says there are two simple reasons she had no challenger. The first is respect.

Andrew Hitt:

You have a wide swath of practicing lawyers that really respect her work and the contributions she has made to the court.

Zac Schultz:

The second reason is philosophy. Like Ziegler, Hitt is a member of the Federalist Society, a conservative legal group. He says conservative judges wouldn’t challenge a sitting conservative. They’re more likely to reach the court by getting appointed to an open seat by Governor Walker.

Andrew Hitt:

Is there going to be an opening? Is there a chance at an appointment?

Zac Schultz:

That makes sense when you consider 11 people applied for the open seat on the court last year that eventually went to Justice Dan Kelly. But no one of those 11 decided to run against Justice Ziegler a few months later.

Andrew Hitt:

More often the case it probably comes down to judicial philosophy.

Zac Schultz:

Andrew Hitt doesn’t discount the notion of Supreme Court races being ugly and expensive or the impact of Wisconsin Manufacturers and Commerce and other third-party interest groups. But he says the impact ends on election day.

Andrew Hitt:

Does that electoral impact or the fact that they spent some money, does that impact how any of them decide? I would say for all seven of them the answer is definitively no.

Scot Ross:

We have an incredibly compromised and ethically bereft Supreme Court.

Zac Schultz:

Scot Ross is the executive director of One Wisconsin Now, a progressive advocacy group. He says the Supreme Court’s partisan elections result in more than a loss in credibility.

Scot Ross:

Got five judges basically that do the bidding of corporate special interests and Governor Walker’s republican agenda, top to bottom, every single time.

Zac Schultz:

Ross says the evidence is in Supreme Court decisions on controversial issues like Act 10, voter id and stopping the John Doe investigation, a case where WMC was under investigation for possible illegal election coordination with Governor Walker’s campaign.

Scot Ross:

They bought a “Get out of jail free” card when it came to the John Doe investigation because they stopped the investigation.

Andrew Hitt:

WMC has had an impact on elections, but I guess I would say that to those people who think they’ve bought and paid for a court, it sounds good in the movies, but it’s not reality.

Zac Schultz:

But if WMC hasn’t paid for results, why have they spent millions trying to get conservatives elected to the court?

Andrew Hitt:

What likely motivated WMC was we want a court, they want a court that respects the role of the judiciary and adheres to the proper role of the court.

Zac Schultz:

And if the court is so corrupted, why did no one challenge Justice Ziegler?

Scot Ross:

Now, some folks have said if you couldn’t beat Rebecca Bradley, why would anybody get into the race?

Zac Schultz:

Ross says the liberal anger against Donald Trump could have made the difference.

Scot Ross:

There's a huge progressive pushback and somebody, I think, missed a real golden opportunity to take on Annette Ziegler and potentially take her out of office.

Zac Schultz:

Many observers think there are not as many progressive judges in Wisconsin simply because there’s no one to appoint them to the bench.

Richard Sankovitz:

The fact is right now most of our justices don’t get there by election. They are appointed in the middle of a term to replace another justice and then stand for election later on.

Zac Schultz:

In six years, Governor Walker has made 65 judicial appointments, meaning 25% of the judiciary was handpicked by him, including the last two Supreme Court justices. Republican governors have been jump-starting the careers of new judges for 22 of the last 30 years. In fact, both of the judges in our story first reached the bench through appointment. Judge Sankovitz by Governor Tommy Thompson and Judge Kelly by Governor Scott McCallum. Since 1975, ten of the 17 Wisconsin Supreme Court justices were appointed. All of which leads Judge Sankovitz to ask why are we still electing Supreme Court justices at all?

Richard Sankovitz:

If you had judges appointed by a fairly independent body or at least a body that was balanced when it came to partisanship.

Zac Schultz:

But conservatives like Andrew Hitt are just fine with the current system.

Andrew Hitt:

I think the sunshine and the speech from both sides is where we get the best results.

Zac Schultz:

And even progressives like Scot Ross aren’t onboard.

Scot Ross:

I'm one of those people that I like to see somebody who’s making decisions that affect my life be directly accountable to me at the ballot box. But I can understand why people might have a different perspective on that.

Zac Schultz:

Judge Kelly doesn’t know if moving everything to appointments would help.

Kendall Kelley:

I'm not sure how you unring the bell. I don’t know that I've ever read about any process that’s apolitical.

Zac Schultz:

So that leaves one option, convincing the best candidates to run for office. Otherwise Judge Sankovitz fears the candidates we do get won’t be able to avoid the stain of partisan politics.

Richard Sankovitz:

If good judges are not going to get into these races, it might open the door to people who are not good judges, but who are willing to take partisan positions and by doing so they might win support from these outside interests.