Adam Schrager:

There will be a primary next month to determine Wisconsin’s next Supreme Court justice. Three individuals are seeking your vote. We’ve invited the incumbent, Justice Pat Roggensack to appear on this program. Another candidate answered questions last month. Tonight we’re joined by the third candidate, Marquette University law school professor Ed Fallone. Thank you for joining us.

Ed Fallone:

My pleasure.

Adam Schrager:

Maybe the best way to start this out is why are you running for the state Supreme Court?

Ed Fallone:

Well, I’m running for the Supreme Court because our current supreme court is completely dysfunctional. People have been saying for years that the court is not operating effectively due to infighting. Their productivity is down in terms of the number of opinions they issue on a yearly basis. And this was even before we had the physical altercation and the disciplinary proceedings brought against Justice Prosser. Finally, the court wasn’t even able to hear those disciplinary charges. It wasn’t even able to police itself when one of its own members faced serious allegations of misdoing. So I think the court is not operating effectively and I’m running because people are tired and want a change.

Adam Schrager:

Janine Geske once described the court as akin to getting all your in-laws together, giving them wine and discussing the most controversial issues you can and trying to get agreement by the end of dinner. Why are you the one qualified to get that agreement at the ends of dinner?

Ed Fallone:

Janine is a colleague of mine and her description is probably accurate. Right now as a law professor at Marquette I have over 30 intelligent, strong-willed colleagues and we certainly don’t always agree. So going from 30 to six seems to me to be a little bit easier task. I have a long experience in the law as a constitutional law professor and scholar, corporate lawyer practicing corporate law and litigation. I know how to focus on the issues. I know how to put personal feelings aside. I know how to keep partisan politics out of the mix, just focus on the legal issues, treat each other with respect, act professionally. That’s what I teach my students. That’s the kind of judge I would be.

Adam Schrager:

You’ve written extensively here, blogged extensively in a time of unbelievable political unrest in the state of Wisconsin. I wanted to ask you about where you defended judges who signed recall petitions. When you announced your campaign, you also mentioned that Wisconsin wants an independent judiciary that’s fair. Do you feel like these two positions are contradictory in any way?

Ed Fallone:

No. I think it’s a mistake to try and inject politics into judicial races. I know that it’s been sort of unavoidable in the current climate of our state, where everything seems to be viewed through a political sense. It’s better to try as hard as we can to keep politics out of judicial races. I don’t think signing a recall petition should be relevant in a judicial race any more than whether you had a walker sign in your yard should be relevant. Political decisions don’t have anything to do with the job of a judge. We all have political persons and personal ideology. But a judge needs to be able to put that aside and focus on the law and that’s what I want to do.

Adam Schrager:

Let me follow up because also you’ve been critical of the Supreme Court's actions surrounding Act 10. You’ve criticized policies concerning permits at the state capitol. Should voters read a partisan edge into it?

Ed Fallone:

I don’t think so. What I try to do as an educator is lay out the issues. I always show my work. I explain the precedent. I explain my reasoning. I try not to take positions in pending cases where there’s actual litigation. I don’t try to say whether one side or the other is correct in their interpretation. I recognize when cases get to the Supreme Court level it’s because there are strong arguments on either side. So just because I’ve written on a topic and explained the arguments on one side or another, I don’t think I’ve taken a position that would cause me to be partial in any case.

Adam Schrager:

You know, labels tend to get thrown around a lot in these types of races and you have called yourself I thought it was fascinating a process conservative, and I’d like you to expand on what that is and what that means.

Ed Fallone:

Well, process conservative means that whatever the ultimate policy goal, I believe that decisions are best made whether the process is a good process. You can’t guarantee a good decision, but the likelihood is better if the process is deliberate, you hear all sides of the issue. That’s one of the grounds on which I have criticized our current supreme court. Too often a rush to judgment, deciding issues they didn’t have to decide, deciding them too quickly without a full airing of the issues and say a court of appeals decision. And I believe that the state Supreme Court needs to remember its institutional role and act deliberately and carefully when it speaks. And that’s what I mean by being a process conservative, being cautious and careful before the court speaks.

Adam Schrager:

There’s been a lot of focus on judicial selection in this country over the last couple of decades. Specifically, the president mentioned on whether a judge should use things like values and empathy in addition to history and the law as foundations for their rulings. So I'm curious, sir, what would you bring to the bench to impact your rulings?

Ed Fallone:

Well, I would be a person who would add a great deal of diverse experience to the current pool of experience on the bench. First of all, I have been a practicing corporate lawyer. I bring an experience representing businesses and investors; a perspective that I think is not represented often enough on the Supreme Court, where many times experience base is more criminal law and maybe family law. So I think the business decisions, my experience there would bring diversity. The fact that I would be the first Latino to serve on our state’s highest court I am the son of a Mexican immigrant. My mother married my father in 1961 and moved to this country. I’ve been very active in the Latino community. I’ve been involved with non-profits doing anti-gang efforts. I’ve been in after-school program non-profits, legal services to immigrants. So I bring a wealth of experiences working in the community in addition to my legal experience. And I think that that’s good as a judge to have that real world background.

Adam Schrager:

What are the issues that you think are facing the court right now that you’re interested in having a say in?

Ed Fallone:

I think my biggest concern as a law professor, as a practicing lawyer, my biggest concern is that the court take care of itself as an institution. The court has an important role to play as a check and balance on the legislature and the executive branch. That’s its role under our state constitution. And I think the court needs to pay more attention to that role, be very careful and deliberate in being impartial and balanced and that’s why this partisan bickering concerns me so much. When the public comes to view our state supreme court as broken in two political camps and they come to view cases as being decided on political grounds, that damages the institution. And so what I want to do is focus on restoring the reputation of our court back to the way it was several years ago when our court was widely viewed as one of the top state supreme courts in the country.

Adam Schrager:

The primary is going to be on February 19. State Supreme Court candidate Ed Fallone, thanks so much for being with us, sir.

Ed Fallone:

My pleasure.