Frederica Freyberg:

Now back to 2020 election coverage of the state Supreme Court race. In tonight’s closer look, we continue our interviews with the candidates running in the February 18 primary race for the high court. Last week, we spoke with incumbent Justice Daniel Kelly. Next week Jill Karofsky will be here. Tonight, a conversation with Ed Fallone who began his career in private law practice in Washington D.C. He’s been on the faculty at the Marquette University Law School for the past 25 years. Ed Fallone joins us tonight from Milwaukee and thanks very much for being here.

Ed Fallone:

Pleasure to be here, Frederica.

Frederica Freyberg:

Well, why are you running for the state Supreme Court?

Ed Fallone:

Oh, well, I’ll tell you. You mentioned I ran for the court in 2013. At that time I was talking about the dysfunction in the court. The fact that we had one justice physically assault another justice. And I said it was time to end the dysfunction and get the court working together. And as I’ve watched since then, as we get to now 2020, if anything, the court is more divided. It seems they don’t talk to each other. And I think we more than ever need to reform the court and make a change.

Frederica Freyberg:

How do you reform the court to fix what you described then and say persists as dysfunction?

Ed Fallone:

Well, I think it’s important to recognize that we need a wider diversity of experience and a wider diversity of legal perspectives on the court. If you want to change the work of the court and make it better, you bring more viewpoints, more perspectives. And so what I bring is a constitutional law professor. Someone who’s an experienced criminal defense lawyer and someone who’s worked as a community advocate in community-based groups providing lawyers to working families and try and get more perspective so we can get the communication going and try to build consensus on the court. Just electing more of the same judges with narrow perspectives is not going to change our system.

Frederica Freyberg:

You also said seven years that it is a mistake to inject politics into judicial races and yet today, the idea that Supreme Court elections are nonpartisan is largely in name only. You yourself are endorsed I saw by the Milwaukee County Democratic Party. Why shouldn’t citizens believe that the conservative-liberal split on the court results in partisan, foregone decisions?

Ed Fallone:

Well, first let me correct you. I don’t believe I’ve been endorsed by the Milwaukee County Democratic Party. If it happened, it was news to me. I am running a nonpartisan campaign. In fact, I’m the only candidate who’s trying to keep politics out of this race. We have our incumbent, Daniel Kelly, who you interviewed last week. He’s located his campaign headquarters in the Republican Party headquarters. He’s embraced his political affiliation. On the other hand, we see attacks being made, partisan attacks by other candidates that really poison the waters and prevent any sort of cooperation or consensus-building. My campaign has been to make an affirmative case for my experience as a law professor. My experience standing shoulder to shoulder with working families who have legal problems and trying to help them get legal representation. And my experience in the Latino community. I would be the first Latino justice on our state Supreme Court. And I understand the challenges of our immigrant communities in the state and have been working for over 25 years to try and help and give back to that community. So I’m making an affirmative case based on my qualifications. I am not engaging in partisan attacks.

Frederica Freyberg:

Do you feel as though any recent decisions from our high court have been political?

Ed Fallone:

Oh, I think so. I think we see some very troubling trends. We’ve seen opinions in the last few years where certain justices on the court make notice of the political affiliation of the parties in the case, which is never relevant to deciding a legal question. And we see instances where the courts — the justices sometimes don’t even seem to talk to each other. One block is talking to itself, writing its own opinion. The other block is dissenting. And I don’t see any effort, any effort really to reach across the divide and try and find consensus in the middle. And that’s what I find troubling. Because the court belongs to all of us in Wisconsin. It works for all of us. And it’s self-indulgent for the justices to just view it as their own partisan fight to express their own partisan views.

Frederica Freyberg:

What’s your position on whether recusal rules should be tighter?

Ed Fallone:

Well, this is something I’ve been very consistent on. When I ran in 2013, it was one of my major campaign platforms and it continues to be a major campaign platform. Look, it’s just this simple. We have a current court rule that allows justices to sit on cases and decide cases when a major campaign contributor is one of the parties in the case. And that’s just wrong, because if someone loses in a lawsuit at our state Supreme Court or anywhere and they walk away from the courtroom without knowing whether they lost on the merits or they lost because their opponent had made significant campaign contributions to the judge that undermines our system of justice. We need to change that rule, and that’s something I’ve consistently argued for, both as a candidate and even in working with Common Cause Wisconsin and other groups advocating for change since then.

Frederica Freyberg:

One of the candidates running, incumbent Justice Daniel Kelly says he only applies the law in cases and doesn’t, “legislate from the bench.” How would you view your role as a justice?

Ed Fallone:

Well, first of all, I would completely take issue with Justice Kelly’s self-serving description of what he does. It’s very clear that he has an agenda on the bench. This is someone who attended the Christian Broadcasting Network University School of Law, a law school that was founded with the purpose of advocating a biblical interpretation of our Constitution. It’s someone who represented Republican office holders and the Republican Party in his legal practice. He’s someone who his whole legal career really has advocated for an agenda. So if there is such a thing as an activist on the right, certainly Justice Kelly fits that definition. I, on the other hand, have been very principled. I have stood for things like righting for our equal protection under the law, fighting for our free speech under the law. But these are principles that are grounded in our Constitution. They’re not partisan principles. And they’re the same exact principles I’ll fight for when I take the oath of office on the bench.

Frederica Freyberg:

Ed Fallone, thanks very much for joining us.

Ed Fallone:

My pleasure.

Frederica Freyberg:

In fact, a quick recheck of Ed Fallone’s endorsements shows the Democratic Party of Milwaukee County itself did not endorse, but people listing their affiliation with the party have done so. Next week, candidate Jill Karofsky will join us.