MADISON — The perennial debate in Wisconsin over whether a judge’s personal political views influence their ability to be neutral arbiters of the law is back.
Wisconsin’s Supreme Court elections are supposedly nonpartisan. But in a somewhat unusual development, the conservative political views of Judge Brian Hagedorn have been laid bare via a more than decade-old personal blog.
The personal views of Hagedorn’s opponent, state Appeals Court Judge Lisa Neubauer, have not emerged in any past political writings, but her family ties to the Democratic Party have presented a counterpoint for her critics.
Displays of partisan rhetoric are considered antithetical to the role justices are supposed to play, and yet court watchers say openly or thinly veiled partisan politics have played an increasingly heavy role in the judicial selection process.
“For democracy to work, the public needs to have faith that courts are somehow different than the political branch of government,” said Douglas Keith, counsel at the Brennan Center for Justice at New York University.
Both Supreme Court candidates who face election in April say they will be fair and impartial in arriving at their rulings, but both have close ties to the political parties that support them.
Hagedorn was Republican Gov. Scott Walker’s former chief legal counsel, while Racine resident Neubauer is married to Jeff Neubauer, a former state Democratic Party chairman, and her daughter, Greta, is a Democrat representing Racine in the state Assembly.
Hagedorn’s personal blog, first reported by the Milwaukee Journal Sentinel, contains detailed and nuanced views on a range of issues, including gay marriage, abortion, race, education, elections and the relationship between church and state. Hagedorn kept the blog, titled “Anno Domini,” (“In the year of our Lord”) in 2005 and 2006, when he was a law student at Northwestern University.
Neubauer spokesman Tyler Hendricks has characterized the blog post as a “personal, extreme and radical agenda.”
It isn’t the first example of a state judicial candidate’s views being turned into a campaign issue. Wisconsin Supreme Court Justice Rebecca Bradley, who joined the court in 2016, referred to gay people as “degenerates” and “queers” in columns written for her college newspaper.
But Janine Geske, a former Wisconsin Supreme Court justice and Marquette University law professor, said Hagedorn’s blog post writings are a rarity in court races.
“He’s moving and blending his own personal views with decision-making in court cases,” Geske said. “That’s a line that most judicial candidates try not to cross.”
Geske, who was a member of the Supreme Court between 1993 and 1998, believes personal views dredged up from judicial candidates’ pasts will become more common given the platform social media provides for expressing personal opinions.
“We didn’t have these opportunities, or didn’t have all these writings that became public,” she said. “People had opinions, they usually just were over the dinner table.”
She recommended those vying for positions on the court steer clear of expressing political views.
Whichever candidate wins election this April, Geske suggested he or she should consider recusal from cases involving deeply held personal beliefs.
Hagedorn in a radio interview after his blog posts were reported said his personal views should not matter.
“The real only question for me is do I feel I can set aside my own views and apply the law?” Hagedorn said. “The answer is ‘yes, absolutely.’ ”
Hagedorn spokesman Stephan Thompson said Hagedorn is committed to applying the law as written, not as he thinks it should be, and that he sees no need to recuse based off of law school writings.
University of Pittsburgh political science professor Chris Bonneau, who studies judicial politics, said the contents of a personal blog should be treated seriously.
“Voters should be pleased that they have information about this guy,” Bonneau said. “Most of the time we have views because we think we’re right. These were his beliefs. If he hasn’t disavowed them, then that’s relevant information for the voters.”
In the blog Hagedorn argued a U.S. Supreme Court ruling striking down a Texas anti-sodomy law could lead to the legalization of bestiality. He also argued gay marriage rights and other controversial questions should have been debated through the legislative, rather than judicial process.
And Hagedorn described Planned Parenthood as “a wicked organization more committed to killing babies than to helping women.”
Hagedorn called for the landmark Roe v. Wade decision to be overturned, arguing it has “no grounding” in the Constitution.
In matters of abortion and gay marriage, Thompson said Hagedorn would apply all binding precedent from the U.S. Supreme Court.
The blog also presented nuanced views on other issues that could find their way before him on the court. For example, on education, Hagedorn openly endorsed a universal education voucher system.
“Taking government out of determining what and how things are taught will allow real diversity to flourish,” Hagedorn wrote.
Gov. Tony Evers has previously vowed to eliminate the program, which offers income-eligible families funding to attend private school. Legislative Republicans have voted several times to expand the program. Hagedorn considered the benefits of ending government loan programs for most college students, writing “I’m not so sure that is a bad thing” if it leads to fewer people attending college.
Hagedorn, who is Christian, also weighed in on the teaching of intelligent design in public schools, arguing local schools boards should be left with the decision whether to teach intelligent design in the classroom, which is currently the case.
He also described as “good news” a report on a court striking down a school’s sex-ed curriculum for being too biased toward Christians.
Hagedorn, who described himself as a constitutional originalist or textualist — a philosophy that the Constitution should be interpreted as originally written — applied such an approach to his views on the separation of church and state, which he wrote he believes in “to a degree.”
“The Constitution, in my opinion, would not prohibit Maine from declaring secular humanism its state religion,” Hagedorn wrote. “And even if the 10 Commandments shouldn’t be placed on courthouse walls as a policy or philosophical matter, the Federal Constitution does not prohibit it.”
Hagedorn was clear, however, that a judge shouldn’t adjudicate his or her own personal moral code.
“I’d much rather take a Catholic, Muslim, Jewish, Hindu, or Atheist judge who is brilliant and addresses Constitutional questions with an originalist/textualist approach than an evangelical judicial activist who decides cases based on her moral code,” he wrote.
On immigration and race
Hagedorn warned “we need clear thinking” on the issue of immigration, arguing national dialogue should not be driven by “irrational” fears of Mexican immigrants and that deporting all illegal immigrants “is just not practical.”
He also wrote at length about the state of the country’s African-American population, acknowledging racism permeates American culture.
“I do not think most of us are blatant racists, but all of us are unconscious racists,” Hagedorn wrote.
Hagedorn suggested the solution to disparities was largely the responsibility of the African-American community itself.
“Real change is going to come when black families and churches start taking responsibility for their community,” Hagedorn wrote. “Is racism a part of the problem? Yes. But I don’t think that is the main problem anymore.”
Whether affirmative action should help address racial disparities remained an open question for Hagedorn at the time of his writings. He wrote that institutional racism should not be ignored, but that “the conservative goal of a colorblind society is the correct one.”
Hagedorn, whose father, Sam, is the chairman of the Milwaukee County Republican Party, made clear he identified with the GOP.
“We’re close, very close to a complete Republican takeover of government,” he wrote. “We have not been able to pass our agenda in part because we do not have enough power.”
But in several posts he made clear he wasn’t afraid to drift from the party line, writing “if I ever find myself always agreeing with the Republican Party powers that be, then I have probably stopped thinking for myself.”
Even as some national and state Republicans have attempted to limit early voting and have described making Election Day a national holiday as a “power grab,” Hagedorn on his blog had a different take.
“Voting is so important and ought to be so much a part of our civic culture, that a holiday may make the most sense,” Hagedorn blogged.
He also argued against the influence of money in politics, and called for all contributions to candidates and political parties over $200 should be disclosed.
Neubauer’s Democratic connection
Similar political writings have not emerged for Neubauer. But her critics point to her own background as evidence she, too, has documented partisan leanings.
Neubauer gave $8,100 to former Democratic Gov. Jim Doyle, who appointed her to the bench. She and her husband, Jeff, the former chairman of the Democratic Party of Wisconsin, also gave to former President Barack Obama’s campaign. Jeff served as President Bill Clinton’s campaign manager for Wisconsin between 1992 and 1996, and the two were invited to the Clinton White House several times for social or political functions, according to the Racine Journal Times.
Neubauer’s daughter, Greta, is a Democratic state representative, and they have appeared together at a People’s Climate March, a protest against President Trump’s environmental policies. Neubauer also appeared alongside then Lt. Gov.-elect Mandela Barnes and U.S. Rep. Gwen Moore, D-Milwaukee, at a fundraiser hosted by Citizen Action of Wisconsin, a liberal advocacy group.
Geske said a candidate’s political connections shine a light on who they are. Voters must decide whether they believe them when they say they’re truly independent.
Neubauer’s spokesman said in an email she would approach every case on the Supreme Court with an open mind and “without bias, ideology or any preconceived outcome.”
Partisan vs. nonpartisan
Judicial candidates or nominees at the state or federal level typically do not openly discuss their personal views that may come before them on the court. The spokesmen for both Neubauer and Hagedorn said it would be inappropriate to discuss legal views now.
Such a practice has left voters to pick up on subtle cues to inform their decision.
“If a candidate says ‘I believe in strict enforcement of the law,’ most people think Republican and conservative values,” said University of Illinois law professor Michael LeRoy. “If a candidate uses ‘equality,’ that’s a cue for a Democrat and liberal values.”
Unlike Bonneau, LeRoy believes nonpartisan judicial elections still have merit, although they could benefit from changes, particularly for campaign finance regulations. He said spending by outside groups in judicial elections has erased the difference between partisan and nonpartisan elections.
“We still want to foster the perception that the judiciary is independent, and it is, to a degree,” LeRoy said. “There’s a lot of pretending going on when the judge puts on the black robes.”
Bonneau argues Wisconsin’s nonpartisan elections deprive voters of a meaningful party cue.
“It’s no secret Democratic and Republican judges view the law differently,” Bonneau said. “We should embrace that.”
A handful of states, such as neighboring Illinois, list a Supreme Court candidate’s political affiliation on the ballot.
Geske has concerns the perception alone of a candidate playing political favorites is a danger for the legitimacy of the courts.
“Perception is reality,” she said. “If people do not have faith in the court and its independence, the court loses the respect that it needs for its legitimacy.”