MADISON, Wis. — Wisconsin Supreme Court challenger Jill Karofsky suggested Tuesday that Justice Daniel Kelly is corrupt because he repeatedly rules in favor of conservative groups, saying it makes no sense that the law could be on their side all the time.
Karofsky made the remarks at the candidates’ first debate. Karofsky and Kelly used the opportunity to paint each other as partisan and the third candidate, Ed Fallone, struggling to get a word in during their exchanges.
Kelly is part of the high court’s five-justice conservative majority. Karofsky went right at him as soon as the debate began, saying it’s “amazing” that a justice is being supported by right-wing special interest groups. Twice she implied that Kelly is corrupt, questioning why he repeatedly rules in conservative groups’ favor.
“What voters see is that you get support from special interests. You ignore the rule of law and you find in favor of those special interests over and over and over again, and that feels like corruption to people in the state of Wisconsin,” Karofsky said.
Kelly shot back that Karofsky scores the outcome of cases through a political lens. He said he applies the law fairly and uses hard logic to reach his decisions.
“When you get done and you can see an unbroken chain of logic, that’s your guarantee that the law mandated the outcome and not anyone’s personal politics or preferences,” Kelly said.
Karofsky also took Kelly to task for joining the majority in ignoring precedent and the process for taking cases.
The court in June ruled that the governor can control public school policy, reversing its own ruling in 2016 that school policy is the domain of the state public schools superintendent. And earlier this year the majority decided to take a case challenging Wisconsin Republican’s lame-duck laws directly weakening the powers of Democratic Gov. Tony Evers and Attorney General Josh Kaul without any hearing in lower courts.
“They overturn cases just because they want to or they don’t follow process just because he wants to achieve a desired result,” Karfosky said. “They are so eager to get to the end result.”
Kelly countered that the court should be able to fix past mistakes. If justices couldn’t revisit precedent the country would still be operating under the separate-but-equal doctrine, which the U.S. Supreme Court said in 1896 amounted to legal racial discrimination, he said.
“What you are suggesting is we would have a one-way ratchet away from the law,” he said.
He didn’t address Karofsky’s accusations that he and the rest of the majority aren’t following established process, although the moderator said he had used up his allotted time to respond.
Fallone, who was seated between Kelly and Karofsky, appeared frustrated that he couldn’t speak as their back-and-forth consumed the first half of the debate. At one point he called himself a “badminton net” between them. When he did get his chances he portrayed himself as above the partisan fray, saying as a law professor at Marquette he has broader experience than either Kelly or Karofsky.
The three candidates will face off in a February primary. The top two vote-getters will square off in the April general election. The result of the election won’t change the ideological balance of the court.
Wisconsin Supreme Court races are officially nonpartisan, but that notion has largely fallen by the wayside as Republicans and Democrats have thrown their support behind candidates over the years. Campaigns have become as politically intense as battles for governor or attorney general, raising questions about their impartiality once they reach the bench.
Then-Gov. Scott Walker, a Republican, appointed Kelly to the Supreme Court in 2016 to replace retiring Justice David Prosser. Kelly as a private attorney successfully defended Republicans’ 2011 legislative redistricting plan in federal court and he’s been courting GOP votes; in June he tweeted a photo of himself holding an assault-style rifle and this month he spoke at a Kenosha County Republican Party gathering.
Karofsky is a Dane County judge and Fallone has worked as a law professor 27 years. Democrats are rallying behind them. Both appeared at party’s state convention earlier this year, signaling in their speeches that they support a litany of party planks.