In a 2007 speech to a group of lawyers in Peru, the late US Supreme Court Justice Antonin Scalia laid out his rules for being a good judge.
“First, a judge must be, above all else, a servant of the law -- and not an enforcer of his personal predilections,” Scalia told the group. “The good judge must suppress his personal views and must decide each case as the law dictates, not as he would have resolved the matter if he had drafted the law or the constitutional provision at issue.”
Madison Attorney Tim Burns, a candidate for the Wisconsin Supreme Court, disagrees. Burns has called the notion of a non-partisan or a non-political judiciary a “fairy tale,” promising that if elected, he would be “an unshakable champion of liberal, Democratic, and progressive values.” Burns has unabashedly vowed to grant new rights to previously unforeseen victims, saying “if expanding rights is ‘legislating from the bench,’ count me in.”
At a debate hosted by the Milwaukee Federalist Society last week, Burns argued Wisconsin needs “someone to stand up to Governor Walker and the Republican Legislature when they act outside the law.” Burns chided the right-leaning Federalist Society members, accusing them of trying to “resurrect the doctrine of ‘survival of the richest’ into our law.” He ripped conservatives for helping elect “a perverse show-dog named Trump” to lead America, saying right-wingers “sit idly by as he destroys our moral standing in the world.”
Unmentioned in this tirade was any explanation of how Burns would interpret the law as written. Alternatively known as the job judges actually do.
In going full #Resist, Burns is pushing hard against recent public opinion. In competitive court races since 2000, Wisconsin voters have chosen the conservative candidate nearly every time, leading to a 7-2 conservative majority on the court. In 2016, progressive groups threw the kitchen sink, the bath tub, the refrigerator, and the garbage disposal at conservative Rebecca Bradley and couldn’t defeat her. Last year, liberals couldn’t find a single progressive to run against conservative incumbent Annette Ziegler for a new 10-year term.
This year, Burns is joining fellow liberal Milwaukee County Judge Rebecca Dallet and conservative Sauk County Judge Michael Screnock in his quest for a seat being vacated by outgoing conservative Justice Michael Gableman. While Dallet is more temperamentally moderate than Burns, she has said, for instance, that she believes the Supreme Court was wrong to uphold Scott Walker’s Act 10 collective bargaining reforms — certainly a signal to Wisconsin’s liberal base that she would have no qualms about judging based on her own ideological impulses.
At last week’s debate, Dallet decried the amount of money “pouring in from out of state” to finance this year’s Supreme Court election. She criticized the current court for ending the recent John Doe investigations, which she believes were meant to uncover the influence of “special interest money and its involvement in politics.”
In doing so, Dallet was expressing support for an unjustified, unlawful round of investigations that had virtually no basis in law. She was simply substituting her desire to see Republicans continue to be publicly abused and harassed.
Ironically, it is this type of overt politicization that has attracted more and more money to Supreme Court elections. If the state court system is simply going to become another legislature, meant to “stand up to Governor Walker,” then its races will be treated as legislative races are — with groups spending millions of dollars to push their own ideologies. (For instance, in 2011, the liberal Greater Wisconsin Committee saw an opportunity to overturn Act 10 by defeating incumbent Justice David Prosser, spending $1.6 million in the last two weeks of the campaign on an ad accusing Prosser of going easy on a pedophile priest nearly three decades earlier. It is unclear whether Dallet frowns on this pernicious use of “special interest money.”)
When judges substitute their own discretion in place of strict interpretation of the law, courts invite more politics. If Burns and Dallet want to stand up to what they perceive to be Republican excesses, they have every right to do so.
In fact, there’s still plenty of time for both of them to file paperwork and run for governor.
Christian Schneider
Christian Schneider is a Journal Sentinel columnist and blogger. He wrote this for Milwaukee Journal Sentinel. -- Ed.
(Tribune Content Agency)
