In long run for high court, Schimel wants to restore objectivity

Since last spring, in a long-haul effort designed to build grassroots support, former Wisconsin attorney general and current Waukesha County circuit judge Brad Schimel has been running for the state Supreme Court, for a seat now held by retiring justice Ann Walsh Bradley.

The election is next April.

Schimel, who has said he is running to restore integrity and objectivity to the state’s highest court, stopped by The Lakeland Times recently for a lengthy discussion, which will be presented in several parts.

When he announced last fall, Schimel took immediate aim at the most recent justice to be elected, progressive justice Janet Protasiewicz, whom conservatives, including Schimel, have accused of announcing during her campaign how she would vote on hot-button issues such as abortion.

“No one should come to court knowing that they have already lost,” Schimel said in his announcement. “A responsible jurist does not prejudge the case, and does not put their thumb on the scale. The liberal majority is poised to impose on the people of this state their will, rather than impartial judgment based on the law.”

What’s needed most, Schimel said, is to restore confidence in the people of Wisconsin that the justice system will be fair and impartial.

“I will be honest about my principles, but will never prejudge a case and will never put my views above the law,” he said. “Any responsible and ethical judge will have many cases where the first impressions they have from a case do not end up being the way they rule. That’s because you keep an open mind, you listen to people and you apply the law impartially.”

Schimel says his early entrance into the race will allow the campaign to build on a strong and resourceful statewide network of grassroots supporters, law enforcement and judicial leaders, and donors that supported his 2014 and 2018 campaigns for Wisconsin attorney general.

So far, Schimel has no announced conservative opponents. On the left, Dane County circuit judge Susan Crawford is running to preserve the court’s 4-3 liberal majority. The Times has extended an invitation to Crawford to come to The Times for a similar discussion.

Prior to being elected attorney general, Schimel served as a prosecutor for nearly two decades in the Waukesha County district attorney’s office before being elected Waukesha County district attorney in 2006. In addition to prosecuting criminal cases, he helped to establish Waukesha County’s successful drug treatment court and now presides over the court as a judge. 

Climbing the ladder

In 2018, Schimel was appointed to fill a judicial vacancy on the Waukesha County circuit court and was subsequently elected in 2019 to a full six-year term.

“I’m 35 years in public service now right out of law school,” Schimel said in his discussion at The Times. “Actually I started as an intern in the [Waukesha County district attorney’s] office my last year of law school and fell in love with the work. I went on to serve 17 years as an assistant district attorney and then, completely by surprise, found myself running for district attorney in Waukesha County.”

Schimel won that race and served eight years as district attorney.

“Then, even by more surprise, I found myself running for attorney general and unfortunately served only four years there,” he said. “That wasn’t my plan, but things work out.”

Specifically, Gov. Scott Walker appointed him to the Waukesha court vacancy after he lost the 2018 election.

“I didn’t miss a day of work,” he said. “My last day as attorney general was followed by my next day as circuit court judge, and I’ve been there since and, I have to tell you, if you had asked me 10 years ago, would I ever see myself running for the Supreme Court, I would have laughed and said, ‘absolutely not.’”

Now, however, Schimel said he just can’t sit back.

“What is going on will utterly destroy our justice system,” he said. “I watched that [Supreme Court] race last year, and we saw a candidate for Supreme Court promise how she was going to rule on cases.” 

Schimel acknowledged that Protasiewicz has later claimed that she was only talking about her values, not specific cases, but the former attorney general rejected that explanation.

“Values are things like integrity, respect for others, a good work ethic,” he said. “Those are values. She was talking about her opinions, and she was telling people how she was going to rule on cases.”

That’s not the way he works, Schimel said.

“Every jury that I swear in at the beginning of a trial, I tell them, ‘you are not to begin discussing the case with each other. You are not to begin deciding the case until you’ve heard all of the evidence, you’ve heard the arguments of counsel and until I have instructed you on the law,’” he said.

And that’s how you get jurors to commit to stay open-minded until they’ve heard it all, Schimel said. 

“If you’ve got judges or, God forbid, the justices on the court who don’t approach the job with that kind of an open mind, well then the litigants walk into the courtroom and one knows they’ve won and the other one knows they’ve lost, not because of the strength of their case but because of the face of the judge,” he said.

That’s not right, Schimel said, and he said he was motivated by his past electoral success and by the organizational network he had built during those statewide campaigns.

“There’s nothing left of our justice system if we do that [prejudge cases], and frankly, conservatives have been losing elections since 2016,” he said. “A lot of them. We’ve been losing statewide elections and some of them getting their teeth kicked in. I felt strongly we needed a candidate who could win, who didn’t have to start from scratch.”

His network gives him a head start, Schimel said. 

“I know those people [the grassroots] and I’ve been back out to see them again, and everybody’s welcomed me back with open arms,” he said. “So we got to start with, instead of getting to know who I am, it’s getting to know what we need to do to win this race. We needed somebody that was willing to get in the race early and campaign in all 72 counties because we haven’t seen that.”

It’s an easier road for liberals, Schimel said, because all they have to do is basically campaign in Milwaukee and Madison, while, to win as a conservative, candidates have to campaign in all 72 counties.

“You have to raise the margins in all of them,” he said. “We needed a candidate willing to do that. I’m willing. I did it. I got in 16 months before election day.”

He won’t be a sitting duck for surprise attacks from the left, either, Schimel said.

“I’ve been tested,” he said. “They’ve already vetted me in 2018. If their dirty trick squad had anything left, well, they don’t have anything. They used it all in 2018, and they made stuff up where they couldn’t fill in the blanks.”

Schimel says that battlefield testing makes him the strongest candidate from the conservative side.

“I came into this race, not anointed to be the candidate, but I came in feeling I could be the strongest candidate,” he said. “If there’s somebody that’s a better candidate, let me know. We’ll have lunch. I’m happy to have you talk me out of this because, frankly, this isn’t my family’s dream for me to do this, but nobody else has emerged.”

Judicial philosophy

Schimel says his is a conservative judicial philosophy but he also says that’s not the same as being a conservative politically.

“In politics, there’s conservative and liberal,” he said. “Those reflect policy decisions. I vote conservative in my personal life, but a judicial conservative versus a judicial liberal is different.”

It’s a matter of approach to the whole process, Schimel said. 

“Liberals believe that their role in the court is to change things, to develop the law into something that fits a vision,” he said. “Conservatives believe that is absolutely prohibited, that the courts are to respect the separation of powers, respect the limitations on their power, to approach this job with the appropriate humility that tells you that your power is limited.” 

Frankly, Schimel said, he took much the same approach as a district attorney and as attorney general. 

“The law is what the law is,” he said. “I have seen district attorneys who, if they had somebody that was caught with child pornography and they know that the law requires a minimum mandatory three years of initial confinement, then they go through these contortions to get around that.”

Schimel says he rejects that approach.

“If you don’t like it, get the legislature to change it, but if this person is guilty of possession of child pornography, then the law provides that they serve a minimum mandatory three years,” he said. “Don’t work your way around it.”

As attorney general, Schimel said he defended laws he didn’t personally like, and there was one in particular, he said, a circumstance where the local government could put restrictions on how private property owners could utilize their land on the lake.

“We thought it was a bad law,” he said. “We thought it put too much government control over private property, but it was the law. We defended it. We won in the Supreme Court. The Supreme Court observed that this might not be the best policy, but the legislature is free to make bad policy. That’s their prerogative.”

And the legislature, after seeing the decision from the Supreme Court, changed the law, Schimel said. 

“That’s how it should work,” he said. “As a judge, you need to have that patience and humility to let that process happen. That’s what a conservative does.”

Beyond the separation of powers, Schimel says there’s another downside to activist judges making law, and that is the inability to establish parameters and standards to address unintended consequences.

“I was campaigning in Adams County six weeks ago or so, and the new [Supreme Court] decision on ballot drop boxes [allowing them] had just come out, and one of the people in the crowd I was talking with said to me, ‘well, but at least they are required to have cameras on the drop boxes.”

And Schimel said he informed the person that there are no requirements to train cameras on the drop boxes and in fact there are no standards at all, only the court’s decision to allow them.

“When the Supreme Court makes a decision, they don’t have the ability, if they’re making law in their decision, they don’t have the ability to build in those standards,” he said. “They can’t hold public hearings where they can have people come testify.”

Schimel says he understands that lobbyists can sometimes get a bad name, but they do perform a service in shaping legislation.

“Because when they sit down and talk to legislators, they can say ‘I know you’re considering this law, just know this, if you do that, this consequence happens,’” he said. “Legislators can have those meetings and can consider those things. The court can’t. So, when they announced that drop boxes are legal, that decision comes with no standards. … They changed the legislative rule. They’re leaving it without that guidance. That’s dangerous.”

The same goes for abortion, Schimel said.

“Now the case is coming up, asking them to decide whether there’s a constitutional right to abortion in Wisconsin’s constitution,” he said. “The problem that the court’s going to face is if they decide that there’s a constitutional right to abortion, well, is this a 14-week right or is this a 20-week right, or is this a 9-month right? They don’t have the ability as the court to do that.”

That’s why those kind of decisions belong in the hands of the legislature, the former attorney general said: “They have the ability to craft those standards.”

Campaigning as a conservative

While justices running for the bench do not want to antagonize supporters in what have become highly political races, Schimel said conservatives have to have the will not to bend to the politics.

“The only promise I will make to voters, to supporters, is that I will follow the law, I will respect the constitution,” he said. “That’s it. You’re not getting any promise out of me when I hear cases.”

As a prosecutor and now a judge, Schimel said he has learned that there are two sides to every story and that both sides have the right to be heard.

“Now the plaintiff starts the case and many times they submit a complaint that’s very strong and it looks like you’ve got a good case here, but I know that there’s an answer coming and the answer comes and it refutes some of that,” he said. “It raises counterclaims. I know that I have the maturity as a judge to respect that there’s another side of the story coming.” 

Schimel said his opposition to prejudging outcomes undoubtedly is a disadvantage in running in today’s climate.

“Now some on the court have fashioned the public to expect that you’re going to tell me what the outcome’s going to be, and I’ve had some argue to me that, ‘Brad, you're going to have to do that,’” he said. “A former speaker of the Assembly argued to me that you have to, that that’s the way it runs now. And I said, ‘I can’t because that destroys everything. That’s the foundation of our judicial system.’”

Schimel compared the situation to a potential juror being vetted for selection from the jury pool.

“If judges come in with their decisions pre-made, that would be like the jurors in jury selection who, when I’m asking questions, they say, ‘well, I have a preexisting bias. I don’t know if I can be objective in this case,’” he said. “Well then you’re going to be excused from serving on a jury.” 

As a judge, Schimel said, if you can’t be objective about the case, you don’t belong on the case and you should be excused from hearing it.

All of which begged the question, with liberal justices running across the landscape promising voting groups they will vote in certain ways, is electing Supreme Court justices the proper or best way to select justices?

Maybe and maybe not, Schimel said, but what’s more important is preserving the independence of the court.

“It is the way our system works, so I have to work within that,” he said. “There are pros and cons to both. If you argue that an appointment [of justices] takes the politics out, you can certainly point to circumstances where plainly these things still get wildly political. You get the justices on the U.S. Supreme Court and all federal judges, they’ll time their departure to make sure the right political party is in the White House and in control of the Senate so that when they leave, they get replaced with someone just like them. I don’t think you can get rid of the politics.”

What you can do, Schimel said, is have the courts fight to maintain their independence. And that’s why, the former attorney general says, Biden’s recent talk about the other branches of government creating ethics rules for the Supreme Court is a mistake.

“I agree with justice [Neil] Gorsuch, who says that is a dangerous thing because you’re interfering with the independence of the branch and you’re going to let the other branches control that one,” he said. “They all have to maintain their independence.”

Next: Schimel on open government, police power, and civil rights

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.