In high court race, Hagedorn says he’s not political

January 19, 2019

In his bid to become a Wisconsin Supreme Court justice, Appeals Court Judge Brian Hagedorn touts himself as a neutral arbiter who only considers the facts and the law.

Like past Republican-backed high court candidates who have criticized liberal judges as judicial activists, his central message is that justices should not play politics and that he would never do so.

“I don’t think it’s good when conservatives do it,” said Hagedorn, who made himself available for an interview Thursday during a campaign stop in Baraboo. “I don’t think it’s good when liberals do it. The court should have seven members who don’t have a political agenda at all and don’t seek to remake the constitution in their own image.”

When asked for examples of political rulings, Hagedorn — who previously worked as Republican Gov. Scott Walker’s chief legal counsel — quickly pointed to longtime Wisconsin Supreme Court Justice Shirley Abrahamson, the leader of the court’s liberal wing.

He described a 2005 opinion that the outgoing Abrahamson wrote striking down a cap on non-economic damages in medical malpractice cases as “creative.”

Abrahamson’s ruling questioned the rationality of a $350,000 damage cap created by state lawmakers, Hagedorn said, and ultimately established a new legal test for patient payouts that he described as “outcome oriented.”

Hagedorn said it’s not a judge’s role to question the rationality of laws, only to apply them.

The court, which has since shifted to a conservative majority, overturned the 2005 ruling in June. In the more recent decision, justices disagreed with lower courts and ruled 5-2 that a $750,000 cap now included in state statutes is constitutional.

But Hagedorn — who will face off April 2 against Democratic-supported Appeals Court Judge Lisa Neubauer — could not cite a specific instance in which a conservative justice has allowed politics to creep in.

When pressed for examples, Hagedorn said he believes some conservative judges have been “not as careful in protecting some of the criminal rights that the accused have.” He said they have handed victories to prosecutors in cases where a defendant’s Fourth Amendment protection against unreasonable searches and seizures was violated.

Hagedorn declined to cite specific cases involving that issue, saying he wanted to be careful about discussing matters that might come before him on the bench.

Neubauer has rejected being labeled as the Democratic Party choice in what is supposed to be a non-partisan race. She was first appointed Appeals Court judge by Democratic Gov. Jim Doyle in 2007, and is Hagedorn’s colleague.

Hagedorn said the fact that his opponent has praised Abrahamson — whom he described as hardworking and smart, but also political — raises questions about her judicial philosophy. He called that “concerning for the court.”

In response, the Neubauer campaign released a statement touting her 30 years of legal experience, including 11 years on the Court of Appeals.

“She is the fair, impartial and independent choice for the Supreme Court — the proof is in the endorsements she has received from over 310 current and former judges from across the state, as well as over 70 endorsements from current and former sheriffs and district attorneys from both parties,” the statement read.

As Walker’s chief counsel, Hagedorn has been involved in significant cases, including litigation over voter identification, same-sex marriage, and the monumentally controversial 2011 bill in which state Republicans curtailed collective bargaining privileges for most government employees.

“I’ve been involved in, it’s fair to say, some of the most significant cases in state history, for sure,” said Hagedorn, whom Walker appointed to the Court of Appeals in 2015.

Hagedorn said there have been discussions about debates between the two candidates. He expects to square off against Neubauer at least three times prior to the April election, although he said that is not a firm number.

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