Will conservatives be wallflowers in Supreme Court race?

By JR Ross

Conservatives believe they have the winning message when it comes to races for the state Supreme Court.

The question is whether they'll spend the money this spring to make sure voters hear it.

In the past two elections, conservative-leaning groups like Wisconsin Manufacturers & Commerce have jumped full force into Supreme Court campaigns, helping Annette Ziegler win an open seat on the bench in 2007 and Michael Gableman knock off former Justice Louis Butler last year. In both cases, conservatives drove home law-and-order themes to pump up the conservative candidate while knocking down the other side as soft on crime and bad for business.

The April election between Chief Justice Shirley Abrahamson and Jefferson County Judge Randy Koschnick has all the makings of another liberal vs. conservative for a spot on the state's highest court.

But WMC decided in January that it was going to take a pass on this year's race, and there are a host of reasons why other conservative groups may be more hesitant this time to drop the big bucks it would likely take to knock off a sitting justice. Abrahamson is viewed as a much stronger candidate than Butler, some haven't bought fully into Koschnick's candidacy and conservatives now have four of the seven seats on the court. Some argue spending millions just to get an extra seat in the conservative column isn't necessary.

"The future of the court isn't necessarily at stake as it was the last time," said Sachin Chheda, a Democratic consultant who worked as Butler's campaign manager last spring.

Conservatives were motivated to help Ziegler and Gableman after a series of court decisions that negated the state's cap on damages for things like pain and suffering in medical malpractice lawsuits, opened the door to suing lead paint manufacturers for a product they made decades ago and making it easier to seek punitive damages in cases where the defendant acted with disregard for workers' safety.

In each of those cases, Butler and Abrahamson signed on with the majority opinion.

But while Abrahamson and Butler share some of the same judicial philosophies, some comparisons between the two end there.

Gov. Jim Doyle appointed Butler to the court in 2004, making him the first African-American to serve on the bench. The former Milwaukee County judge had only been on the statewide ballot once before he tried to hold onto his seat in 2008. That was in 2000, when he challenged then-Justice Diane Sykes and was pounded by a margin of almost two-to-one.

Abrahamson was appointed to the court in 1976, the first woman to serve on the body, but she has won three statewide elections since - 1979, 1989 and 1999.

Also, many believed Butler wasn't willing to approach his campaign like a politician, preferring to stay above the fray in the give and take of the campaign and not overly enthusiastic about raising money.

Abrahamson, on the other hand, has built a statewide network during her more than three decades on the bench and is seen by court watchers as a sharp politician as well as a justice. She raised more than $822,604 during 2008 as she ramped up for her re-election bid. That put her on pace to surpass the almost $1.5 million Ziegler collected for her 2007 campaign, the most any Supreme Court candidate has raised for a campaign.

Koschnick starts out at a disadvantage as a little-known county judge, but so was Gableman a year ago before he rode a slew of ads by outside groups to a seat on the Supreme Court.

Koschnick was elected to the Jefferson County bench in 1999 and now serves as the county's presiding judge. In announcing his candidacy for the Supreme Court, he hit on some of conservatives' favorite themes when it comes to the courts, including a promise to show restraint, and decried judicial activism.

Still, some conservatives have expressed concerns about backing Koschnick, noting that he served as the public defender in 1995 for Ted Oswald, who was convicted of a crime spree along with his father that included a bank robbery, kidnapping and the murder of a Waukesha police captain.

Mark Graul, who worked as a consultant on Ziegler's campaign, said conservative groups will likely consider how Koschnick's campaign performs in the early going before deciding whether to get involved.

That includes raising enough money to show he can put together a solid campaign. Though outside groups have been the dominant force in the last two elections, they will want to be sure they're making a good investment, Graul said.

Koschnick did not get off to a good start, raising about $50,000 through the end of January, with a large chunk of that coming out of his own pocket.

A quick look at the numbers shows just how important that support from outside groups can be in a race for the Supreme Court. All sides, including the candidates, spent a record $5.96 million on the 2008 campaign between Butler and Gableman, according to a tally by the Wisconsin Democracy Campaign. That includes $4.8 million from third-party groups.

Wisconsin Manufacturers & Commerce spent an estimated $1.8 million on the 2008 campaign, making it the biggest spender in the race, according to the WDC. Losing that kind of financial presence in the 2009 race is a blow for Koschnick's chances. It also doesn't help that the Club for Growth and Coalition for America's Families - two conservative organizations that spent heavily in last year's race - have decided not to get involved this time around.

WMC was harshly criticized by liberal groups after the 2008 campaign for its role in knocking off Butler. WMC President Jim Haney said that may have been on the minds of some board members as they discussed whether to jump in this year, but it wasn't the focus of the discussion. "The consensus was that people could look at the records of both candidates, and they could make up their own minds," Haney said.n

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