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Last night Madison immigration lawyer Linda Clifford (yes, I’m adopting the talking points!) and Judge Annette Ziegler debated as candidates in the April 3rd election for the Wisconsin Supreme Court. I attended the debate at Marquette Law School; you can listen to it online or watch it on Time Warner Cable Channel 1111. I am going to provide a running commentary based on my listening to the online audio, providing the times for you who want to listen along. PLEASE NOTE THAT THE VERY BEST STUFF COMES AT THE END. If you only have a minute, just scroll down to 51:30 and read from there.

8:20 - Linda Clifford says she does not consider herself as running to replace Justice Wilcox but rather that she is running to fill an open seat. This comment is interesting when juxstaposed with the argument popular among US Senate Democrats that President Bush needed to appoint a woman or a moderate to Justice O’Connors seat on the US Supreme Court because they were filling her spot to “maintain balance” on the Court.

8:30: Clifford “I had considered running against Justice Wilcox actually but he spared me the obligation to make that though choice when he decided to retire.” That’s not what she said on March 28, 2006, in this press release that is still available on her website:

As I announced last fall, I am a candidate for election to the Wisconsin Supreme Court in the Spring 2007 election. In learning today of Justice Wilcox’s decision to retire at the conclusion of his term, I congratulate him on his many years of public service as a member of the judiciary and the legislature. At the same time, I now look forward to continuing my candidacy, building on the enthusiastic support I’ve already received — both financial and personal — from all around the state.

I think we may have just caught Atty. Clifford in a bit of revisionist history here!

17:20: Clifford: “And certainly the invitation to sign a clean campaign pledge had to be rejected. I have signed an honest campaign pledge and I’m committing myself to an honest campaign between me and the voters of Wisconsin. I don’t need to negotiate a campaign pledge with my opponent.”

Why that is the case is unclear. In 1998, Congressman Mark Neumann, and the state’s greatest independent thinker, the one and only Mr. Fabulous Russ Feingold (see 27:30), came to a mutually agreeable campaign pledge.

25:10: Professor Dan Blinka: “Which of your opponent’s supporters should be closely watched by voters?”

I will answer that question for Judge Ziegler. Voters should be very skeptical of Attorney Clifford’s loud support from gay rights groups. Voters chose by a 60-40 margin (and in another year and with a different campaign it would have been 70-30) to support an amendment to the Wisconsin Constitution defining marriage as between one man and one woman. Now the Wisconsin Supreme Court will have the job of interpreting this new part of the Constitution. Will it apply to state-sponsored domestic partner benefits? Civil unions? Where will the lines be drawn?

As the Human Rights League PAC said in endorsing Clifford: “The candidate who is elected to this seat will play a critical role in defining how the anti-LGBT marriage amendment is applied. Linda Clifford will work to defend the rights of Wisconsin’s LGBT families.”

As Clifford said in answering a survey for Fair Wisconsin, the group that led the fight against the Amendment:

4. As a private practitioner, have you ever handled a case involving a legal matter of concern to the LGBT community? (Please describe.)
Over the years, I have provided pro bono advice and counsel to the Madison AIDS Support Network and provided a legal opinion on Wisconsin law regarding the right to adopt and the right to marry to an out-state lesbian couple considering a move to Wisconsin.

5. As a private citizen did you express an opinion on the state constitutional amendment that was passed by the electorate in November of 2006 defining marriage as only between one man and a woman and banning civil unions for gay and straight couples? (Please describe.)
In the winter of 2005, before becoming a judicial candidate, I co-signed, along with 150 other lawyers, a letter addressed to the Wisconsin Legislature recommending against adoption of the marriage amendment, based on the principle that the Constitution was not the appropriate forum for this matter.

We know from the Madison Capital Times that Fair Wisconsin is planning to work on behalf of Clifford:

Fair Wisconsin has a direct interest in the race given that Supreme Court justices, who serve 10-year terms and are almost always easily re-elected, will likely weigh in on the implications of the state’s new gay marriage ban, Freker said.
“We believe the court will decide the scope of the amendment,” he said.
The group has not formally endorsed Clifford, but its newly formed political action committee will likely pay for college campus organizers to get out the vote for the candidate.

27:30: Clifford: “[t]he statesmen of the state of Wisconsin, Patrick Lucey, a Democrat, and former governor Lee Sherman Dreyfus, a Republican. I’m also proud to be endorsed by most of the Congressional delegation in our state, including the most independent thinker in the state, Russ Feingold, as well as senator Kohl and a number of legislators… by a number of sheriffs and DAs and judges…”

Whether Gov. Dreyfus is a statesman is something I think many Wisconsin political observers would debate. All of Clifford’s Congressional endorsers are Democrats. Russ Feingold votes the liberal line more often than Herb Kohl in the Senate, and one only need read Charlie and McBride to see what a facade the whole “maverick” thing is… All of her legislator endorsements are by Democrats. Clifford’s website only lists ONE sheriff, that of Dane County no less, and NO district attorneys as endorsing her. Clifford lists the endorsement of 21 judges and court commissioners.
By comparison, Judge Ziegler has the support of Tommy Thompson, whom many would likely call WI’s closest thing to a statemsman, 132 judges, 41 DAs (including such a Democrat stalwart as Milwaukee Co DA John Chisholm), and 46 sheriffs.

Clifford: “I’m proudest of the endorsements I’ve received from the organizations that represent and work on behalf of ordinary people in Wisconsin, becuase I think they understand and appreciate how I grew up, and they understand as labor organizations, as organizations that represents teachers and workers all around the state…”
It’s worth noting that the union endorsements aren’t uniformly for Clifford. Judge Ziegler has been endorsed by the Milwaukee Police Association, the Milwaukee Police Supervisors’ Organization, the Milwaukee Deputy Sheriffs’ Association, the Washington County Deputy Sheriff’s Association, the Hales Corners Professional Police Association, and the Washington County Sheriff Department Protective Services Command Staff Association, the Wisconsin Professional Police Association, and the Milwaukee Professional Fire Fighters’ Association. In other words, all the law enforcement unions to endorse, chose Judge Ziegler.

40:00: Clifford: “And the fact that they’re small claims and default cases, that just belittles the nature of litigation brought by poor and working families, for whom $500 is a big deal.”
That comment totally misses the point of Judge Ziegler’s defense. She was not saying that no ethical violation occurred because these were unimportant or insignificant cases - she was saying because they were small claims and default they never crossed her desk but were just handled by a court commissioner in another floor of the building. Her name was just stamped on the case file. This is a total misinterpretation of the argument.

46:20 - Judge Ziegler HITS THE QUESTION OUT OF THE PARK on med mal caps as a window into judicial philosophy. Great answer.

HERE’S WHERE WE GET TO THE MAJOR DIFFERENCES IN PHILOSOPHY!!!
51:30: Borkowski from MJS: “Linda Clifford, same question to you. What areas of the law do you think are most ripe for clarification or review or are things that strike you as needing a little additional clarification?”

Clifford’s Answer: “I do enjoy all the practice areas I enjoy, which range from environmental law to constitutional law to First Amendment issues, open meetings, open records, access to government, anti-secrecy cases, some municipal law, with many interesting land use and eminent domain questions, telecommunications deregulation, energy regulation.”

What a huge liberal! Look at those issues… environment, open government, land use, eminent domain (Kelo, anyone?), telecomm and energy regulation!

52:30 Clifford continues: “I think in the future we’re likely to see and I think I will be very interested in changes in public financing of education, for example, and the 1st Amendment issues that may relate to school choice and the voucher program, because I think those are very profound issues that affect our state from all kinds of different angles.”

Wwoooowww DOGGY! As I pointed out yesterday, in states across the nation teachers unions and school districts are suing in state courts seeking judicial orders for more funding for education. You can go to the Oklahoma Education Association’s Adequacy and Equity Project website to read exactly what kind of case I’m talking about. Judges have ordered more state spending and even ordered increased taxes in education cases in other states before. We’ve seen school funding cases come before over a dozen state supreme courts and many more district courts.

In one fell swoop, in just one decision, the Wisconsin Supreme Court could order the Legislature to spend more money on public education, abolish the QEO, and declare the school choice program unconstitution. From her quote right there, I fear Linda Clifford would welcome such an opportunity.

54:45: Ziegler: “With respect to the Court’s role, I view the Court’s role as a more traditional one. I think that you have to be faithful to the role of being the third branch of government, a separate and equal branch of government, no more or less powerful, and it’s important not to invade the province of either of the other two branches of the government. I think the Court’s role is to interpret the statutes, Constitutional provisions, administrative regulations according to their plain meaning. I think stare decisis is very important to follow, you have to be faithful to that, that’s part of the judicial role. You need consistency, predicatibility, impartiality when deciding cases. Avoid overly broad holdings or sweeping results or remedies that are really outside of the Court’s jurisdiction to even invoke in the first instance. My opinion is that you have to faithfully adhere to the law regardless of any political affiliation. … Sometimes you’re tempted to reach an outcome for someone you feel sorry for. Sometimes you want to create a remedy for someone in front of you that you just can’t. That’s not the role of the Court. The role of the court is one that’s humble, it has humility, and it’s modest, and the Court needs to stay within that confined role to properly function and maintain its independence within the three branches.”

WOW - that’s a great statement of judicial philosophy right there.

57:00: Clifford: “I think I am most attracted to the discussion of judicial philosophy propounded by Justice Breyer, who describes a pragmatic approach. … Respecting stare decisis and precendent as a starting point for stability, but not in a blind way, because stare decisis needs to evolve, precedence needs to evolve, the common law needs to evolve, in response to changes in technology, social values, legislative changes, and that’s an appropriate role for the Court.”

Anyone hear echoes of “evolving standards of decency” ??? Breyer, a huge liberal. Law evolving in response to social values? She may not want the label “living constitutionalist” or “judicial activist” because the people don’t want those kind of judges, but that doesn’t mean the label doesn’t fit!

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