The Supreme Court Race Comes Down to Activism vs. Principle

Dan O’Donnell identifies what’s at stake in the race between conservative Supreme Court Justice Daniel Kelly and liberal challenger Jill Karofsky


February 19, 2020

Guest Perspective by Dan O’Donnell

Like any good politician, Jill Karofsky wants the public to know where she stands on the issues and how she will enact an agenda based on her ideals once elected.

“I believe in protecting our environment from corporate polluters, protecting women’s health care, and holding corrupt politicians accountable,” she says in a television ad that has been running all month.

It’s direct, to the point, and effective.  It also completely disqualifies her as a serious candidate for the office she seeks.

“As your Supreme Court Justice,” she concludes in her ad, “I’ll make decisions based on the law.”

The irony here is at once laughable and terrifying.  Karofsky, a very liberal Dane County Circuit Court judge, is promising to make decisions based on the law while listing off decisions that she would leave to her own conscience.  Restrictions on abortion? She’d strike them down because she believes in “protecting women’s health care.” Disputes over mining regulations? Sorry, corporate polluters, but she will be the greatest champion for the environment since Captain Planet.

Not content to simply legislate from the bench, Jill Karofsky is promising to legislate from a hunch—relying on nothing more than the brilliance and morality of…Jill Karofsky.

Hers is the worst sort of judicial arrogance; a deeply held belief in her own ability to delineate right from wrong independent of the U.S. or Wisconsin Constitutions, applicable statutes, and relevant case law.  It also violates the state’s Code of Judicial Conduct.

Karofsky is promising to make decisions based on the law while listing off decisions that she would leave to her own conscience

SCR 60.06 3(b) explicitly provides that “a judge, judge-elect, or candidate for judicial office shall not make…with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”

Promising to stand up against “corporate polluters,” “corrupt politicians,” and anyone who would threaten “women’s health care” is about as blatant a violation of both the letter and spirit of this guideline as one could imagine.

Land use, abortion issues (which is rather obviously what Karofsky means by “women’s health care”) and political corruption cases will obviously come before her, should she be elected to the Supreme Court, and could conceivably come before her in her current role on the Dane County Circuit Court.

How can she possibly adjudicate these cases fairly when she is openly advertising the fact that she will rule for certain parties and against others?

In December, she used her Twitter account (@JudgeKarofsky), which clearly identifies her as a judge, to publicly call for stricter gun control legislation.

“Families in Sparta and at Waukesha North have also had to deal with lockdowns in the last couple of days, and incidents like these have been happening all over Wisconsin, including a ‘hit list’ in Shorewood,” she tweeted in the wake of a particularly troubling week in the state.  “I’m thankful for first responders who keep us safe.

“But that’s not enough. As a parent, I know our kids shouldn’t have to fear for their lives at school, and not a single parent should be worrying about whether our kids are coming home after school.  It’s up to the policy-makers to decide what the law should be, and judges like me are here to apply and interpret the law. But I know action is needed.

Karofsky’s advertisements and Twitter rants are the very essence of judicial activism

“We can respect constitutional rights and at the same time take steps to make every family safer.  It’s way past time for lawmakers to step up to the plate.”

Does that screed leave any conceivable doubt about how she would rule on gun control legislation signed by Governor Evers?  Even if such a law represents a gross violation of the citizenry’s Second Amendment rights, Karofsky’s stated belief that “more action is needed” to “make every family safer” prejudices her in favor of the law’s constitutionality.

It is thus impossible for Karofsky to impartially (and therefore ethically) hear any gun control case that would come before the Wisconsin Supreme Court, but given her stated mission to crusade against the proliferation of firearms, does anyone really believe that she would recuse herself?

Of course not.  Activists like her live to decide these sorts of cases by substituting personal political preferences like the ones Karofsky tweeted for actual precedent and Constitutional principle.

By contrast, her opponent, incumbent Wisconsin Supreme Court Justice Daniel Kelly actually did recuse himself from the most hot-button political case of the year, even though it meant handing a (temporary) victory to his political opponents.

Last month, Kelly recused himself from the Wisconsin Institute for Law and Liberty’s lawsuit against the Wisconsin Election Commission over the Commission’s refusal to follow state law and remove more than 200,000 names from voter registration lists.

Justice Kelly, on the other hand, has just demonstrated his strict adherence to the Rule of Law

Because the ruling would affect the Spring Election and Kelly is on the ballot and could theoretically benefit from that ruling, he recused himself.  Political conservatives were beside themselves since his vote would have broken a 3-3 tie (fellow conservative Justice Brian Hagedorn sided with the Court’s two liberals) and allowed the Supreme Court to immediately take up the case instead of waiting for it to make its way through the appeals process.

Even though it could have benefited him and his political supporters, Justice Kelly recognized that sitting on the case would have violated the Code of Judicial Conduct.  Even though political conservatives were furious with him, as a judicial conservative Kelly could not have made any other decision.

Wisconsin faces a clear choice on April 7th: Principled, moral deference to governing law or shameless, reckless politicking.

Karofsky’s advertisements and Twitter rants are the very essence of judicial activism and illustrate why it is so dangerous.  Justice Kelly, on the other hand, has just demonstrated his strict adherence to the Rule of Law. The April 7th election, then, isn’t so much a contest between two judges as it is a battle for what Wisconsin wants its Supreme Court to be.