- In this March 15, 2019 file photo, Wisconsin
Supreme Court candidate Brian Hagedorn speaks during
a debate with opponent Lisa Neubauer at the
Wisconsin State Bar Center in Madison, Wis.
Hagedorn's win means the conservative majority on
the court will increase to 5-2 when he begins his
10-year term in August. Hagedorn's inauguration
marks the end of a legal era and starkly illustrates
the power governors have to reshape the state's
judiciary. Hagedorn will be replacing the retiring
Abrahamson, Wisconsin's longest serving justice and
the state Supreme Court's first female member.
MADISON — Brian
Hagedorn's inauguration as a state Supreme Court justice
this week will mark the end of a legal era and starkly
underscore governors' power to reshape Wisconsin
courtrooms with like-minded appointees.
Hagedorn will be sworn in
Thursday to replace 83-year-old Justice Shirley Abrahamson,
the state's longest-serving and first female justice. A
staunch liberal, Abrahamson chose not to seek re-election
as she battles cancer. Hagedorn defeated liberal-backed
Appeals Court Judge Lisa Neubauer in April to claim the
seat and expand conservatives' control of the high court
The Hagedorn-Neubauer race,
though ultimately settled by voters, pitted two candidates
who were initially appointed to lower courts by governors
who appeared to share their ideology. Republican Scott
Walker appointed Hagedorn to a spot on the 2nd District
Court of Appeals in 2015. Democrat Jim Doyle appointed
Neubauer to the same appeals court in 2007. Legal experts
say their path to the courts is emblematic of governors
packing the courts with allies, resulting in judges who
produce predictable partisan decisions.
"You'd like to think
you've got seven people sitting there and looking over the
law and being fairly dispassionate about it. (Their
decision) shouldn't be predictable by someone who knows
nothing about the law," said Frank Tuerkheimer, an
emeritus University of Wisconsin-Madison law professor who
studies judicial ethics. "As we become more polarized
why shouldn't appointment of judges be polarized, too? I
would be surprised if it were otherwise."
The Wisconsin Constitution
grants the governor the power to fill vacancies on any
court, mirroring the federal system in which the president
appoints federal judges. Unlike lifetime federal
appointments, the governor's appointments must run in the
next election to keep the post. But the appointees go into
the contests as incumbents, giving them a huge edge in
name recognition and contributions.
Wisconsin has 272 state
court judgeships. Governors have made 153 judicial
appointments since 2002.
Doyle appointed 66 judges
during his two terms, most notably giving Democratic state
Rep. Gary Sherman a job as an appellate judge. Walker
appointed 86 judges during his two terms, including
handing GOP Attorney General Brad Schimel a Waukesha
County judgeship in November just a day after Schimel
conceded defeat in his bid for a second term.
Walker has also had a huge
impact on keeping the Supreme Court in conservative hands.
Besides giving Hagedorn his
start as a judge, he appointed Justice Rebecca Bradley to
her first job as a judge in Milwaukee County Circuit
Court, then named her as an appellate judge and finally
appointed her to the high court in 2015 after Patrick
Crooks died in office. Bradley used her incumbency as a
springboard to defeat liberal JoAnne Kloppenburg in 2016
for a 10-year term on the court.
Walker appointed Justice
Dan Kelly to the court that same year to replace retiring
conservative David Prosser even though Kelly had never
worked as a judge before.
Kelly and Bradley have gone
on to play key roles in several significant rulings. They
joined the conservative majority in two rulings in June
that preserved Republican lame-duck laws limiting
Democratic Gov. Tony Evers' powers and forced the state
schools superintendent to get the governor's permission
before writing policies.
Kelly will face Dane County
Circuit Judge Jill Karofsky and Marquette University law
professor Ed Fallone in next spring's elections. The power
of incumbency is already coming into play for Kelly; he's
built a substantial fundraising lead over both Karofsky
Evers has made one judicial
appointment since taking office in January, picking
attorney Rachel Graham to replace Sherman. Evers has
plenty of time to make more appointments if openings
present themselves before his first term ends in 2022.
"If he chooses to name
highly ideological Democrats, that will change the
philosophy of the courts and bring the divisiveness of
politics further into the (judicial system)," said
Howard Schweber, a UW-Madison political scientist who
studies constitutional law and democratic theory.
Turkheimer said judicial
elections don't solve the problem because they hinge on
campaign contributions, which can taint the perception of
a candidate's impartiality. Governors double as the
leaders of their parties, giving them huge influence in
elections as they recruit and promote candidates, Schweber
The state could turn to a
nonpartisan commission to fill judicial vacancies but that
would take a constitutional amendment stripping the
governor of appointment powers. Such amendments must pass
the Legislature in consecutive sessions and a statewide
referendum before taking effect, a high bar in such a
divisive political climate.
"An extreme level of
partisan division is becoming more and more a feature of
our politics at every level and it's spreading into levels
where it previously wasn't a major feature. State courts
are one of them," Schweber said. "The question
is when will people become tired of this and take action
for a different kind of politics?"