One measure of how degraded our state Supreme Court elections have become is that Randy Koschnick is seen as having little chance of beating the incumbent, Chief Justice Shirley Abrahamson.
The reason? Koschnick, a circuit court judge in Jefferson County, has raised far less money than Abrahamson for the April 7 election, $53,000 to her $1 million at last accounting. And powerful outside interest groups like Wisconsin Manufacturers & Commerce have announced their intention to sit this one out. WMC poured a total of $4 million into the last two elections, in 2007 and 2008, giving conservative judges Annette Ziegler and Michael Gableman the push they needed to prevail.
"I have no idea," says Koschnick, 48, asked why he thinks WMC has decided to not get involved. It's rare reticence from a candidate who answers most questions forthrightly. He declines to even speculate.
Well, let's see. It could be that WMC and others have decided that Abrahamson is secure. She's been on the state Supreme Court for 32 years, including 12 as chief justice. She's a brilliant jurist and phenomenally hard worker, and even though she's now 75, no one doubts her ability to serve another 10-year term. In fact, those who know her probably expect her to run again in 2019.
It could be the backlash WMC has suffered for its past efforts to stack the court with conservatives (see "Epic Contractor Drops WMC Membership," 6/26/08). Or it could be that those efforts have been so darn successful, to where conservatives now clearly dominate the court. Why buy what you already own?
Or maybe it's all a ruse; maybe, in the days that remain before the election, the deus ex machina of big business and the right (is that redundant?) may yet arise to pour millions into the race, using other shadowy conduits created to avoid campaign disclosure laws.
It's hard to see how they can resist. Koschnick is cut from the same ideological cloth as Ziegler, Gableman and Patience Roggensack, elected in 2003. (These three, along with former Republican Assembly Speaker David Prosser and sometimes Patrick Crooks, give conservatives a solid hold on the seven-member court, excepting only Abrahamson and Justice Ann Walsh Bradley.)
Like other conservative candidates for the court, Koschnick calls himself a "strict constructionist" who "will not legislate from the bench." He dwells on the same small set of cases, all decided in 2005, that supposedly demonstrate the court's "liberal activist" tendencies. (If the charge is true, one wonders, why can't critics find examples from other years?)
But there's a difference: Roggensack was a cold fish, Ziegler plagued with conflicts of interest, and Gableman intellectually and ethically unfit (he's now facing misconduct charges from the state Judicial Commission for lying to get elected). Randy Koschnick, in contrast, is a terrific candidate - knowledgeable, measured, personable and articulate.
He's a far better candidate than any of the last three victorious conservatives. And, more to the point, he's a far better candidate than Shirley Abrahamson.
No activists here
Randy Koschnick is no moderate. He has ties to the Promise Keepers, a Christian group that's been likened to a cult, and the Wisconsin Family Council, which led the push for a state constitutional amendment against gay marriage and civil unions. He's backed by Wisconsin Right to Life and the NRA. He's been advised by Darrin Schmitz, the former state Republican Party head who ran the Ziegler and Gableman campaigns. He places himself in the same philosophical camp as U.S. Supreme Court Justices John Roberts, Antonin Scalia and Clarence Thomas (!).
And Koschnick admits to personal views that could cause a commotion in Clarence Darrow's grave. "I believe that God created people as people," he says, affirming his belief in creationism over evolution.
But while Koschnick thinks it's good "to give students as much information as possible," he vows to weigh a constitutional challenge involving the teaching of evolution with an open mind. "I'm not going to let my personal religious views decide."
So how would he come down in a dispute between widely accepted science and a religious belief most scientists agree has no basis in fact? Koschnick suggests such deliberations are beyond his purview as a judge.
"I won't look at scientific studies and decide what should be taught," he assures. "That's the role of the Legislature. I'll look at the Constitution." He adds, "I don't read the Constitution to say that schools must teach or must not teach creationism."
This is the essence of Koschnick's argument against judicial activism. He says the court, in those troublesome cases from 2005 (see "Supreme Shift," 12/8/05), exceeded its authority in looking at studies and imposing mandates, instead of just weighing the facts and law of the cases before it.
Perhaps the best example is State v. Jerrell. The high court unanimously threw out a juvenile's improperly obtained confession. Koschnick is fine with that. But then four of the seven justices decided that, henceforth, juvenile confessions would be inadmissible as evidence unless they were videotaped. Koschnick is appalled by this.
"That's activism - usurping the role of the Legislature and police," he says. "That's improper."
Koschnick served on a legislative task force appointed to look into wrongful convictions. It brought in police, prosecutors, judges, lawmakers and defense attorneys to craft reforms - including a requirement, since enacted, that juvenile and adult felony interrogations be videotaped.
But unlike the Supreme Court's edict, the law drafted by this group and passed by the Legislature contained a funding mechanism and other practical provisions. Koschnick says he and Abrahamson "both agree it's good to record confessions. It's how we get there that's different."
Koschnick offers a similar critique of the court's rulings in other (2005) cases, like when it struck down as too low the Legislature's caps on medical malpractice awards. "When I read the Constitution," he says, "it doesn't talk about medical malpractice." Well, duh.
Abrahamson, for her part, fervently rejects the suggestion that she approaches cases with any ideological predispositions: "I do what the facts and law require."
It's a good argument to make, but unconvincing. While a surprisingly large share of Supreme Court cases are decided unanimously, some do break down along obviously ideological lines. At least some of Abrahamson's supporters believe she'll apply the law in ways that favor injured people over corporations and the rights of the criminal defendants, some innocent, over the power of the state. That's why they support her.
Abrahamson's reluctance to affirm and defend these leanings undercut her appeal. She's running from her own record of progressivism, which she should be trumpeting.
The professor vs. the populist
Take, for instance, this simple question: "Are there innocent people in prison in Wisconsin?"
Abrahamson, in her interview with Isthmus, hems and haws.
"In recent years, various groups and especially the Innocence Projects across the country and in Wisconsin have pointed out cases in which a person has been wrongly convicted," she says. "We always have to look at making our system better and make sure the guilty are convicted and the innocent freed."
Yes, but are there innocent people in prison in Wisconsin? "We know people have been released."
Same question, third try. "When [new] evidence comes to the court or comes to the district attorney, it is then judged." The woman is a rock.
Let's try this on Koschnick: Are innocent people in prison in Wisconsin? "Absolutely!" he says. "I recognize that as a problem."
Koschnick says the court has a role to play in reversing wrongful convictions on a case-by-case basis and identifying the need for systemic reforms. But he believes it's up to the Legislature, not the court, to make changes.
Even when there's little reason to fear coming off as a liberal criminal coddler (as Koschnick has sought to portray her), Abrahamson is much more circumspect. It's the professor versus the populist.
Asked about periodic efforts in the Legislature and elsewhere to restrict what information is made available on the state's online court records system (WCCA, commonly called CCAP) and/or curtail who has access, Abrahamson refuses to stake out a position.
She says that Wisconsin has "the most open and transparent court system in the country," and that when issues arise as to whether certain information should be available online, the court system appoints a diverse group to review policy and make recommendations. [Note: The author has served on several of these groups, as an advocate for openness.]
But what does she think? What's her opinion? "The Legislature makes the public policy," she replies. "The court interprets and applies the public policy." Talk about your strict constructionists.
Koschnick, asked the same question, takes a firm stand in favor of public access to this information.
"I believe in power to the people," he says. "Transparency helps keep government accountable and ethical." He agrees on the need to withhold some data but says, in general, "the appropriate remedy [to concerns about access to information] is more information" - like existing disclaimers that remind site visitors of the presumption of innocence.
This pattern of candor versus constraint plays out on other issues. Here's Koschnick on the recent decision by federal Judge Barbara Crabb to strike down rules that kept judges and judicial candidates from joining political parties and soliciting campaign contributions.
"It's better to have more speech than less speech," he says. "I agree with the decision."
Abrahamson's assessment of Crabb's ruling is more wishy-washy: "It is, at least until appeal, binding."
Both candidates say they don't plan to join political parties, even now that they can. Abrahamson says she will not solicit funds; Koschnick is still thinking it over.
Koschnick has sought to paint Abrahamson as unethical for accepting campaign contributions from lawyers who have cases pending before the court. She says these do not influence her decisions, and besides, no party in a case "should be able to force me out by contributing to me."
But Koschnick says she has another option: Return the contributions. Asked whether he would do so himself if elected, Koschnick replies: "Yes. Or possibly take the money and recuse. One or the other. But you don't take the money and hear a case."
One Wisconsin Now, a liberal-leaning watchdog group, says Koschnick has in fact heard more than 1,800 cases involving lawyers who've given to his campaign. More than half of these involved a single prosecutor who gave $50 to Koschnick in 1999.
Both candidates reject calls for Wisconsin to pick judges through merit selection - a system of identifying a pool of worthy candidates for the governor or Legislature to choose from. That's not surprising, given that they are asking citizens to vote for them.
For either, though, it's a somewhat peculiar stance to take. Abrahamson is herself, she says, "a merit judge," having been initially appointed to the job by a Democratic governor. In fact, that's how most justices in Wisconsin are chosen, by governors, to fill vacancies. But now there's no mandated process of identifying worthy nominees.
Koschnick, meanwhile, says merit selection would "take power away from the people." But he must on some level realize that, absent a massive infusion of special-interest spending, being picked by some future Republican governor is probably his best bet for becoming a justice on the state Supreme Court.
Speculating on the future
At a recent debate before the Dane County Bar Association, Abrahamson may have had the edge in terms of the audience's affection, but she was decidedly less impressive as a presenter. She seemed unmindful of time constraints, at one point going on so long that the moderator skipped her turn to let Koschnick respond.
Both candidates held their strongest criticisms of each other in reserve until their closing remarks. Abrahamson charged that Koschnick's "rhetoric does not match his conduct," citing several cases in which he's been overturned on appeal "because he imposed his own personal views" in reaching his rulings. In one case, the appeals court said Koschnick had "an erroneous understanding" of a law and exceeded his authority.
Koschnick had little difficulty blowing this out of the water, noting that he's been reversed seven times on 27 appeals from among thousands of cases, and that there's nothing unusual about courts using strong language in overturning decisions.
After making Abrahamson's objections look petty, Koschnick went in for the kill, asserting that she has "sided with criminal defendants more than any other justice," or 60% of the time.
This is grossly unfair, since the court rejects the vast majority of criminal appeal requests - 93.5% over the last two terms - thus affirming existing rulings against defendants. And, who knows, maybe 60% of the cases Abrahamson has ruled on deserved to be resolved in favor of defendants. Maybe 80%. But the debate ended with a dagger protruding from Abrahamson's back.
Koschnick's approach has worked well in the past. Conservatives have repeatedly gotten elected by milking public fears about activist judges turning criminals loose. (Among other things, this ignores the fact that criminal cases are just a small part of the court's workload, accounting for just 42 of the 219 opinions it's issued over the last two years.)
But Koschnick may be limited in how far he can go with this, given that, in his past role as a public defender, he represented Ted Oswald, convicted of killing a Waukesha police officer in 1994. Oswald, from prison, has praised the quality of his representation, much to Koschnick's chagrin.
If conservatives decide that a 5-2 majority on the court is not enough and come to Koschnick's aid, making his candidacy viable, special interests aligned with Abrahamson could raise this issue.
Abrahamson, who's lauded Koschnick's past service as a public defender, pledges not to do so herself. But what would she do if a group supportive of her candidacy began running ads attacking Koschnick for representing Oswald?
"In our system of justice we need good prosecutors and good defense counsel," she says diplomatically. Pressed, she refuses to say more: "I'm not going to speculate on the future."
Here's the exact question Abrahamson declined to answer: "Will you denounce any outside group that makes untrue statements on your behalf or tries to sully your opponent?"
Here's Koschnick, asked the same question: "Yes. I don't want to see her personally attacked. I don't want people lying about her. I would correct any misinformation."
Other Isthmus coverage
Supreme Choice, 3/14/03
Supreme Shift, 12/8/05
Justice in the Balance (Ziegler vs. Linda Clifford), 3/8/07
Make It About Merit (opinion column), 1/31/08
Mud Is Flying in State Supreme Court Race (Gableman vs. Butler), 3/13/08
Epic Contractor Drops WMC Membership, 6/26/08
Gableman: Unfit for Any Office (opinion column), 3/27/08