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An affiliate of Wisconsin Manufacturers & Commerce

Wisconsin Supreme Court Conservative Majority at Risk

The next two Wisconsin Supreme Court races carry the potential to flip the court’s conservative majority that sat at a comfortable 5-2 split just one year ago. The first of these two races lurks less than five weeks away and will determine the successor to the seat that has been occupied by Justice Shirley Abrahamson for 23 years. The hopeful successors to retiring-Justice Abrahamson’s seat are Chief Judge Lisa Neubauer and Judge Brian Hagedorn, both of whom serve on the Wisconsin Court of Appeals District II.

Overview of Hagedorn v Neubauer
The Court of Appeals colleagues both boast impressive legal careers. Chief Judge Neubauer has served on the Court of Appeals since 2007, when she was appointed by Gov. Doyle, and has been chief judge since 2015. Before taking the bench, she clerked for then-Chief Judge Barbara Crabb on the U.S. District Court for the Western District of Wisconsin and worked in private practice as a partner at Foley and Lardner LLP.

Judge Hagedorn has served on the Court of Appeals since his appointment by Gov. Walker four years ago. Before that, he served as assistant attorney general for the Wisconsin Department of Justice and clerked for then-Wisconsin Supreme Court Justice Michael Gableman. He then served as Gov. Walker’s chief legal counsel until his appointment to the bench in 2015.

Both Hagedorn and Neubauer assert that their own personal political views will not play a role in their decision-making. Yet—as is par for the course in the state’s nominally non-partisan Supreme Court elections—the candidates’ political leanings have been brought front and center.

Most recently, the media has brought its focus to Judge Hagedorn’s religious beliefs. Specifically, to his beliefs on homosexuality, as represented by a series of blog posts he wrote as a law student in 2005 and the conduct code adopted by the small Christian school he and his wife helped found. One of the blog posts under fire has Hagedorn paraphrasing Justice Scalia’s dissent in the U.S. Supreme Court’s Lawrence v. Texas decision that struck down a law against homosexual sodomy.

Critics also point to Augustine Academy’s—a small Christian school that Hagedorn helped found and on which he currently serves as board member—policy prohibiting students, parents, and teachers from participating in sexual activity outside the context of traditional, heterosexual marriage.

Chief Judge Neubauer’s background also suggests some political leanings. She has donated over $8,000 to former Gov. Doyle and appeared alongside prominent Democratic Party-elects at liberal advocacy group fundraisers. Her husband is the former chairman of the Democratic Party of Wisconsin and previously worked as President Clinton’s campaign manager for Wisconsin and her daughter is a Democratic state representative. 

Kelly Race Looms Large in 2020
While a liberal victory this April would not shift the court’s conservative majority, it could have serious repercussions for conservatives in 2020. Much to his own misfortune, Justice Kelly’s chance for re-election aligns with what is sure to be a significant Democratic presidential primary. With the anticipated high rates of Democratic voter turnout in that election, the court will be highly susceptible to a liberal takeover.

If the Democratic momentum that brought about the election of liberal Justice Rebecca Dallet last spring and Governor Evers and Attorney General Kaul last November continues to dominate the next two Supreme Court elections, a 4-3 liberal majority awaits in 2020. This flip may jeopardize the conservative victories won by the Walker Administration and the Republican legislature’s redistricting plans for 2020.