MacIver News Service

By M.D. Kittle

MILWAUKEE, Wis. – Who said court candidate forums are stodgy, stolid affairs?

The Federalist Society’s state Supreme Court forum Monday night featuring three candidates looking to replace outgoing Justice Michael Gableman had all the backbiting bellicosity of a political campaign – or a routine “nonpartisan” Supreme Court race in the bitterly divided Badger State.

The forum, moderated by University of Wisconsin-Madison Political Science professor Ryan Owens, in large part proved to be a bare-knuckle political brawl between the two left-leaning candidates, Madison attorney Tim Burns and Milwaukee County Circuit Judge Rebecca Dallet. The other candidate, Sauk County Circuit Judge Michael Screnock, the conservative in the race, mostly remained above the fray, periodically asserting that his opponents are effectively Activist Judge 1 and Activist Judge 2.

“Simply put, the role of the court is to be arbiters of the law, not policy analysts or political activists,” said Screnock, clearly at home at Federalists’ event. “My opponents do not share these views.”

The three candidates face off in a primary election scheduled for Feb. 20, with the two top vote-getters on the ballot for the April 3 general election.

Burns, who at one point proclaimed that he “loves suing insurance companies,” set the tone early when he attacked the sponsors of the event. He charged that the conservative Federalist Society and its members would “resurrect the doctrine of survival of the richest into our laws.”

“You have provided the brain power for the reconcentration of wealth in our society that has destroyed our once thriving small towns and vibrant cities,” Burns asserted. “In doing so, you have weakened our democracy to the point that we have elected a perverse show dog named Trump to lead our great nation. You helped that demagogue pack our federal courts and you sit silently by as he destroys our moral standard in the world.”

The vast majority of judicial nominees confirmed since President Trump took office have ties to the Federalist Society, including U.S. Supreme Court Justice Neil Gorsuch. It is a mark of the powerful footprint the nonprofit society has had in American jurisprudence since its founding in 1980.

“I would say I think the Federalist Society has come to play over the last 30 years for Republican president something of the role the American Bar Association has traditionally played for Democratic presidents,” Steven Calabresi told The Hill in November.

The Federalist Society is a force of reform of the American legal system, advocating for a textualist or originalist interpretation of the U.S. Constitution.

Dallet, who tried to paint herself as the more moderate candidate between the conservative Screnock and the liberal Burns, told the forum crowd that the U.S. Supreme Court justice she admires most is liberal Ruth Bader Ginsburg.

But mainly she took aim at Burns for attacking her on the campaign trail.

“He has attacked my campaign the entire time, and he has been cherry-picking. That is something judges can’t do. And I guess I can’t expect Mr. Burns to know that because he is not a judge,”  Dallet said.

“He is not out doing the work. He has never stood up for victims. He has never made our community safer, and he doesn’t ensure justice is done every day the way I do. These are slimy political attacks,” the judge added.

She criticized Burns for taking public positions on cases, positions that could create a conflict of interest.

Burns fired back that Dallet’s position as a candidate “changes every other day.” He accused her of supporting Chief Justice Patience Roggensack, a conservative member of the court, in her re-election campaign five years ago. Dallet also has supported Justice Shirley Abrahamson and Justice Ann Walsh Bradley, the court’s liberals.

“When I look at her case law, some of it frightens me,” Burns said of Dallet, pointing to an appeals court decision criticizing the judge’s ruling that police acted appropriately in legally patting down a black man who was hanging out near a convenience store before heading to a bus stop. The man was in possession of a handgun, but the appeals court reversed Dallet’s decision, ruling that, “with limited exceptions people in this country have a right to go about their lives.”

In a statement to the Milwaukee Journal Sentinel, Burns claimed Dallet’s decision exposed an “utter insensitivity to the historic plight of people of color.”

“Can you imagine if another court ruled that an older white man was subject to search for standing outside a gas station for 5 minutes? We would have a rebellion in this country,” he said.

“How many times have I ruled against the police, Mr. Burns? You don’t know that answer and you didn’t bother to look,” Dallet shot back at the forum.

Burns insists he will be an “unshakeable champion of liberal democratic values.” Dallet says, “We need to address racial and gender inequality head-on and not sweep the vestiges of a racial and patriarchal system under the rug.” Screnock asserts the Supreme Court is “not a court of ideas, it’s a court of law.”

“It’s not my job to make people happy. It’s my job to apply the law and do so faithfully,” the judge said.

The liberal Supreme Court candidates blasted the role of “money in politics” even as they outpaced Screnock in campaign fundraising. Dallet took in nearly $225,000 in the last six months of 2017, according to a report filed with the state Ethics Commission. Trial lawyer Burns raised north of $135,000 over the period, and Screnock raised more than $104,000.

Dallet lambasted the conservative majority on the “broken” state Supreme Court for not allowing the infamous John Doe investigation to proceed. The court in 2015 ruled the campaign finance probe was unconstitutional and ordered it shut down.

Asked after the forum whether she thought the John Doe investigation into dozens of conservative groups – an investigation that included predawn, armed raids on the homes of innocent citizens, Dallet refused to answer MacIver News Service’s questions. She directed questions to her campaign handler who accused MacIver News of being an “advocate” and said that Dallet had already answered the question during the forum.

Burns’ campaign handler refused to allow the candidate to speak to MacIver News Service following the forum, even as he was being interviewed by another media outlet.

Screnock said the Supreme Court decided that the John Doe investigation could not be used to investigate the activities that were protected under the Constitution – political speech and the right to associate.

“I believe that’s an accurate statement of the law,” the candidate said.

M.D. Kittle is an Investigative Reporter with the MacIver Institute. This article appears courtesy of the MacIver Institute.