MADISON – Like past races for state Supreme Court, next month’s election features a partisan-tinged fight between a liberal and conservative who present contrasting views of the direction the high court should take.
But in another way it is like no race before it.
The coronavirus pandemic is keeping people in their homes and politics out of their minds. Debates have been canceled, as have campaign rallies and fundraisers. The candidates are trying to connect with supporters digitally and urging them to vote by mail — something most of them are not used to doing.
Justice Daniel Kelly and Dane County Circuit Judge Jill Karofsky offer sharp differences.
Kelly wrote a decision that found Madison could not bar guns on its buses, argued the U.S. Supreme Court decision legalizing same-sex marriage undermined democracy, compared abortion to murder, and praised a decision that upheld Act 10, the 2011 law that scaled back collective bargaining for public workers.
Karofsky said she believes there are constitutional ways to put restrictions on guns, supports same-sex marriage, believes abortion should be a matter kept between a woman and her doctor, and champions collective bargaining.
Kelly was appointed to the high court in 2016 by then-Gov. Scott Walker, the author of Act 10. Karofsky signed the recall petition against Walker.
Kelly has been endorsed by President Donald Trump. Karofsky has said there is no way she would vote for Trump.
The April 7 election will decide whether the court’s conservative majority stays at 5-2 or tightens to 4-3.
Kelly, 56, grew up in Colorado with six brothers and sisters. He knew he wanted to be a lawyer as early as seventh grade.
“When you have that many siblings, there is an inborn sense of, you gotta have justice, right? You gotta have equal treatment and all of that,” he said in an interview.
He earned his undergraduate degree from Carroll College in Waukesha and his law degree from Regent University Law School in Virginia.
Before he joined the court, he was in private practice at Reinhart Boerner Van Deuren and a small firm he set up. For about a year he served as vice president and general counsel for the Kern Family Foundation.
He headed the Milwaukee chapter of the Federalist Society, a conservative legal group that has advised Republicans on federal court nominations, and helped state lawmakers defend legislative lines they drew in 2011 that benefited Republicans.
Karofsky, 53, grew up in Madison. She started running at 10, was a high school tennis champion and participated in two Ironman competitions.
“Running for me is like breathing oxygen. It just rejuvenates me,” she said.
She earned an undergraduate degree from Duke University and master’s and law degrees from the University of Wisconsin-Madison.
She served as the state’s first violence against women resource prosecutor and later oversaw crime victim services for the state Department of Justice. In that role she helped change the law to make it easier for victims to get restitution and helped change court rules to better protect victims’ privacy, such as by having court documents refer to them by their initials instead of their names.
She was elected to the Dane County court in 2017.
A new kind of campaign
The pair have had to campaign in a way no candidate has before because of the health crisis.
“We’re trying to figure out how to conduct a campaign in which you can’t actually meet anyone, which is weird,” Kelly said.
The pandemic has also changed how courts operate as well.
Last week, the Supreme Court in a 5-2 ruling ordered courts to stop holding jury trials until late May. Kelly joined Justice Rebecca Bradley in a dissenting opinion that said the decision violates the constitutional right to a speedy trial.
“The Constitution is a command to us, not a suggestion,” he said in the interview. “And so if it requires speedy trials, then defendants must get speedy trials.”
He said there are safe ways to conduct jury trials, such as with video conferencing, where “nobody is in the presence of anyone else.”
Karofsky said she is working from home and has conducted a hearing remotely. She has postponed one case for someone who had demanded a speedy trial but said she was making sure it would happen as fast as required by law.
She said she favored making the courts as safe as possible but did not directly criticize Kelly for dissenting from the decision delaying trials.
“I think we need to do everything we can to keep people safe,” she said. “And I think that everything that we can do to flatten the curve is going to make a difference.”
Both candidates have accused each other of having a political agenda, and Karofsky has repeatedly alleged Kelly is corrupt. Her tone has triggered a strong response from Kelly’s conservative colleagues, who contend her phrasing has been unbecoming for a judge.
Kelly said he didn’t think Karofsky would be able to get along with those justices if she wins the election.
“I don’t know how she could get along with them,” he said. “She spent the last year slandering not just me, but the whole court itself.”
Karofsky disputed that.
“I don’t think that it will be a problem at all. I respect the members of the court,” she said. “The problem is not that I’ve been shining a flashlight on the fact that Dan Kelly has an agenda. The problem is that he has an agenda and the surefire way that we can bring integrity back to the Wisconsin state Supreme Court is for me to win this election so that Dan Kelly is no longer on that court.”
She noted she was appointed the head of crime victim services by two Republican attorneys general, J.B. Van Hollen and Brad Schimel, despite disagreeing with them politically. She said she was able to get the appointment because the issues they were working on “ transcended politics.”
The two candidates have pushed different campaign themes, with Kelly stressing a judicial philosophy of interpreting the law as written and Karofsky emphasizing her values.
In a questionnaire she answered for a Madison teachers union, she wrote the law must remain “stable and predictable.”
“That means I can’t always rule the way Democrats or liberals want,” she wrote, “but my values do come into play because I believe the rule of law requires fairness, consistency, dignity for all people and an expectation that real people have rights (as opposed to corporations or right-wing political movements being supreme.)”
Kelly said someone who stresses values should run for the Legislature, not the Supreme Court.
“I think the values are really just a thin veil put over her personal political agenda,” he said. “If she says that she belongs on the bench because of her personal values, then essentially what she’s saying is she belongs on the bench because those are the kinds of things that she would pursue. And our role on the bench is not to do that. We are to set all of that aside in favor of the law.”
Both campaigns are urging people to vote absentee because health officials are advising people to stay away from others as much as possible. People can register to vote and request absentee ballots at myvote.wi.gov.
Online voter registration is available until Monday and people can request absentee ballots online until Thursday. Clerks are urging people to make requests as soon as possible to help them stay on top of a backlog of requests.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.
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