I got a copy of Rick Esenberg's paper A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court in the mail today. One of the perks of being in the Federalist Society is that they constantly send you cool stuff. I knew about all of the cases in the paper before I read it. They are fairly famous/infamous in the Wisconsin legal community. But oddly enough, I couldn't help but shake my head in shock and disgust over what the majority of our state's Supreme Court has done since the 2004-2005 term. I strongly urge that you read it before voting.
This list of criticism and commentary really struck me...
Public commentary about the Wisconsin Supreme Court as "activist" began in the wake of the 2004-05 term, the first term following the resignation of Justice Sykes (appointed to the Seventh Circuit by President Bush) and her replacement by Justice Louis Butler, a trial court judge in Milwaukee and former public defender, by Democratic Governor Jim Doyle. After a series of decisions expanding the ability of plaintiffs to recover damages in various ways, the Wall Street Journal ran an editorial referring to Wisconsin as "Alabama North," a magnet for trial lawyers. Anticipating the remarks of Judge Sykes, Milwaukee County Circuit Judge Michael Brennan wrote that the court's decisions raised "concern about the proper exercise of judicial authority under the state's constitution." A national advocacy group led by Dick Armey, former majority leader of the U.S. House of Representatives calledThe court was extremely reckless. As Judge Sykes explained in her speech last year (which you should also read) and as Esenberg explains in his paper, the new majority threw caution and precedent to the wind, rewriting the rational basis test, telling the police how to do their jobs, and handing down a variety of other surprising rulings. Unfortunately, Justice Jon Wilcox, one of the frequent dissenters, is retiring. If his seat is taken by a Justice with a judicial philosophy in line with that of the majority, the court will slip further into la la land. I believe that Linda Clifford and her "I am willing to let the constitution breathe and reflect what society needs in any given context" philosophy is exactly in line with the unbound rulings of the majority. She will add another vote to the Abrahamson, Bradley, Butler, and often-Crooks group of Justices that has been so willing to substitute their preferred policy judgments for those of the legislature and the people of this state.
Wisconsin a "Tort Hell Tundra." Susan Steingrass, a law professor at the University of Wisconsin observed that "[i]t's an interesting court to watch now. Nothing's for sure."
Laudable or not, something was happening. Joseph Kearney, Dean of Marquette University Law School, observed that "[b]y any measure, this was an extraordinary year at the Wisconsin Supreme Court." According to Kearney, "[f ]rom tort law to criminal law, the court was willing to depart from what had seemed to be settled approaches."
I don't really care about most of what has been said in this election campaign. Most of the ads and attacks have been lame and unimportant. The discussions about judicial philosophy have been sorely lacking, and they are the discussions that matter the most. I am not happy about Judge Annette Ziegler's conflict of interest problems that she's had while on the circuit court. I think that she should have recused herself in those cases. But we've got two candidates in this election. Two choices, that's it. We don't get perfect candidates, and this election has shown that. I'm not voting for Judge Ziegler because she is perfect. I'm voting for her because her judicial philosophy is closer to mine. It's closer to that of Justice Wilcox, Justice Roggensack, and Justice Prosser. It's closer to the role that I see as legitimate for a member of the judiciary.
This state cannot afford to have a Supreme Court that judges (and I use that term loosely) like the majority has in the last few terms. The best candidate for the job is Judge Annette Ziegler.