The Party Line

The Wisconsin Supreme Court race is technically nonpartisan, but the 2019 race falls along traditional party lines.

 Joe Murray  |    February 11, 2019
The Party Line

On April 2, 2019, Wisconsin voters will elect a new state Supreme Court justice who will serve on the state’s highest court for a 10-year term. The April election is technically nonpartisan in Wisconsin, which means that candidates for this statewide election do not run as a “Democrat” or “Republican.”

In reality, Wisconsin Supreme Court elections are increasingly partisan races where the two major candidates are supported by the political infrastructure of the Democrats and Republicans. In the 2019 high court election, Judge Lisa Neubauer is supported by mostly Democrats and Judge Brian Hagedorn is supported by mostly Republicans. Neubauer was first appointed to the Wisconsin Court of Appeals by former Democratic Gov. Jim Doyle, while Hagedorn was appointed to the Wisconsin Appeals Court by former GOP Gov. Scott Walker.

Both Neubauer and Hagedorn will stress their impartiality at every opportunity, but a closer look at their campaign managers illustrates the point. Tyler Hendricks, a veteran campaign operative and 2019 campaign manager for Neubauer, was campaign manager for Democratic Congressman Ron Kind from La Crosse, Democrat state Rep. Greta Neubauer from Racine, and worked as a regional organizer for Hilary for America in 2016. On the other side of the divide, Stephan Thompson, campaign manager for Hagedorn, was former Gov. Scott Walker’s 2014 campaign manager and served as executive director of the Republican Party of Wisconsin during the nationally publicized Walker recall election in 2012. Both campaign managers are supremely qualified and highly effective, but “independent” or “impartial”? Not so much.

It’s only reasonable to believe that Neubauer’s and Hagedorn’s partisan affiliations won’t affect every decision they make as a future justice of the state Supreme Court, but it’s pure folly to believe their judicial philosophies and political connections will have no influence on their opinions and decisions on the bigger issues that come before the state’s high court.

With this in mind, here are three big-picture factors that will shape the 2019 Wisconsin Supreme Court race between now and the April 2 election.

Partisans Will Strongly Influence the 2019 Race

Charles Franklin, professor of law and public policy at Marquette University Law School, recently published a piece in Marquette Lawyer Magazine, titled “The Increasing Correlation of Wisconsin Supreme Court Elections with Partisanship — A Statistical Analysis.” In this article, Franklin studied state Supreme Court elections over the last 43 years and found that “the correlation between county partisan voting and the vote for nonpartisan Supreme Court candidates increases substantially from the 1970s to the 2010s.” Franklin also noted: “The increasing association by the public of Wisconsin Supreme Court justices with partisan leanings is also in line with the increasing partisan nature of presidential nominations to the United States Supreme Court and the confirmation process for those nominations before the United States Senate.” Indeed, who could forget the confirmation hearings for Justice Brett Kavanaugh?

So voters should be cautious when they hear Judge Hagedorn say that “personal political values” have no place on the Supreme Court, or Judge Neubauer say, “my fellow judges know the importance of having fair, impartial and independent justices on the Wisconsin Supreme Court, and that is exactly what I plan to be.” There is a big difference between good intentions and modern-day political reality.

Balance of Power on the Court

Judicial conservatives currently have a 4-3 majority on the Wisconsin Supreme Court, and the next two high court elections could swing power to judicial liberals. If Neubauer defeats Hagedorn in 2019, and a judicial liberal defeats current conservative Justice Daniel Kelly when he’s up for election in 2020, judicial liberals could be in control of the court by summer 2020.

Some insiders view this year’s race between Neubauer and Hagedorn as the critical election for conservatives. If Hagedorn defeats Neubauer this April, a loss for Justice Dan Kelly in 2020 would still maintain a 4-3 conservative majority. This fact elevates the importance of the 2019 election outcome for both sides.

The problem for Kelly is one of timing. The 2020 Supreme Court election falls on the same day as the Wisconsin presidential primary, when a likely long list of Democrats will be competing for the presidential nomination and generating much higher voter turnout for Democrats statewide. This dynamic will benefit the liberal candidate running against Dan Kelly in a big way. 

While this analysis seems slightly technical, it reinforces the point by Professor Franklin and others that Wisconsin Supreme Court elections are “nonpartisan” in theory only.

Third Parties Will Play Big

Over the past 12 years, outside third parties have played a major role in state Supreme Court elections. The 2019 race between Hagedorn and Neubauer will generate significant amounts of campaign spending both for and against the candidates, and third parties will no doubt vastly outspend the candidates themselves. According to an analysis by the Wisconsin Democracy Campaign, which tracks election spending by candidates and committees, third party spending on Supreme Court races over the past 12 years totals $15.4 million, a number far greater than anything the candidates can raise for their own campaigns.

Bottom line: Judicial conservatives want to maintain their majority, and judicial liberals want to take it away. With so much at stake in the outcome of this year’s election in April, voters can expect to see a record amount of campaign spending on both sides of the political divide. This race certainly will not have the feel of a “nonpartisan” race.

Joe Murray is Director of Political and Governmental Affairs for the WRA. 

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