For the third time in as many years, the race for Wisconsin Supreme Court will offer voters at least two distinctly different candidates.
But will the conservative approach of Jefferson County Circuit Court Judge Randy R. Koschnick used by the last two elected justices be enough to overcome incumbent Chief Justice Shirley S. Abrahamson’s 32 years of Supreme Court experience?
Some observers suggest the third time may not be a charm, despite the recent track record of success for judicial conservatives, especially if third-party interest groups do not invest heavily in this election.
Marquette University Law School professor Richard Esenberg said that unlike previous campaign efforts, which resulted in victories for justices Annette K. Ziegler and Michael J. Gableman, it may be hard for Koschnick or any candidate to overcome the established Abrahamson.
“The chief justice is a formidable opponent and it will take a very capable candidate and lawyer to defeat her,” Esenberg said. “I doubt that third parties who may oppose Chief Justice Abrahamson’s political philosophy will be interested in the race unless they believe that her opponent is such a candidate.”
Koschnick, 48, wasted little time identifying himself as a judge who abides by the letter of the law, and jabbed at Abrahamson as a “judicial activist” during his formal announcement of candidacy on Nov. 17.
While campaign manager Todd Allbaugh denied comparisons between Koschnick’s ideology and those of Gableman and Ziegler, he did cite a candidate’s judicial philosophy as the “essential issue” of a Supreme Court race.
“Do you believe Supreme Court justices should be of a constructive nature and apply the law as written, or see the constitution as a living, breathing document that changes and is open to interpretation?” Allbaugh said. “That is the issue that should frame any state Supreme Court race.”
Allbaugh added that Abrahamson’s tenure on the high court shows a history of “legislating from the bench.”
“If you look at Justice Abrahamson’s record on the court, it is clear she let her own personal interests and feelings cloud the way she rules on cases,” Allbaugh said.
Abrahamson denied ever having let personal preference or third-party pressure influence her ruling in a case. She said citizens expect and demand their judges to be fair and impartial elected officials.
“Let me explain that I’ve always decided cases based on facts and law, and not according to any personal agenda or agenda of any outside groups,” Abrahamson said in an interview. “Judges aren’t for or against anything.”
Esenberg said an open discussion about judicial philosophy is a debatable campaign tactic, but ultimately a worthwhile endeavor.
“Good people disagree on the desirability of this approach and it is a legitimate and vitally important issue,” Esenberg said. “Because of that, I am not surprised that [Abrahamson] would have an opponent. This is important stuff.”
Decreased Outside Interest?
Third-party spending during the last two Supreme Court election cycles was well documented, but University of Wisconsin Political Science professor Barry Burden suggested interest groups may be more restrained during this campaign.
Wisconsin Manufacturers and Commerce (WMC) invested seven figures in each of the past two years on ads in support of Ziegler ($2.2 million) and Gableman ($1.7 million).
But Burden suggested WMC and other groups may “reevaluate” their roles in next year’s election given that there is already a perceived conservative majority on the Supreme Court and increased public scrutiny of campaign issue ads.
“This will be an important setting to determine the future of outside groups in Wisconsin judicial elections,” Burden said. “There has been pushback from both within WMC and from the outside. If WMC steps back, I suspect that other groups will as well.”
WMC spokesperson Jim Pugh said the organization has yet to decide if and when it will get involved in the race.
“The board hasn’t considered what they will do yet and to my knowledge, have not met with Judge Koschnick,” Pugh said.
During his announcement, Koschnick said he would denounce issue ads that are false or misleading, but he did not call for an end to third-party involvement in campaigns.
Burden suggested that repudiating “false ads” is not especially meaningful, since the truth can be subjective.
“It would be more important to say that one will repudiate negative ads, or even all ads, run by outside groups,” Burden said.
Abrahamson declined to speculate on what level of interest third-party groups may have in the election.
“I think people of the state will reject tired labels and divisive rhetoric,” Abrahamson said. “They have a chance to do so on April 7.”
Koschnick also drafted a clean campaign pledge which Allbaugh said he hopes Abrahamson will sign.
The chief justice indicated she has yet to see the document, but said she has run three clean campaigns in the past and plans to do so again, regardless of outside ads.
Even though Abrahamson has yet to finalize her campaign staff, she said she is confident in her progress to this point. She plans to employ many of the same strategies that got her elected in 1979, 1989 and 1999.
“The campaign will progress and I always expected a challenge,” said Abrahamson, who will be 74 in December. “So don’t you worry about me.”
Koschnick has been on the bench in Jefferson County since 1999 and prior to that served as a public defender.
Allbaugh acknowledged the challenge in unseating a long-time justice, but said he expects Koschnick will be able to raise enough money and support to have a “serious campaign.”
“I don’t think someone runs for statewide office if they don’t think they can do the job or they will lose,” Allbaugh said.