Historic all-woman bench possible if elections next week and next year break that way

By Peter Cameron, THE BADGER PROJECT

Six of Wisconsin’s seven Supreme Court justices are women, giving the state the highest ratio of female high court judges in the U.S., an investigation by The Badger Project has found.

And, if two upcoming key elections break a certain way, Wisconsin could make history as the first state Supreme Court in the nation to elect all women justices.

But the path from here to there has its share of potholes.

“I think it’s possible,” former Wisconsin Supreme Court Justice Janine Geske said in a phone interview with The Badger Project. Geske was the second woman to serve on the high court.

“But the odds are it probably won’t happen.”

Perhaps the most significant challenge will exist in next year’s high court election.

The Wisconsin Supreme Court’s only man, conservative Justice Daniel Kelly, must run for reelection in 2020. Then-Gov. Scott Walker appointed Kelly in 2016 to take over after the retirement of Justice David T. Prosser Jr.

No challenger – female or otherwise – has yet emerged to take on Kelly.

Encouraging signs for an all-woman high court?

Two potentially encouraging developments exist for progressive-minded voters who want to elect another woman to the high court:

The 2020 Wisconsin Supreme Court election will appear on the same ballot as the Democrat primary for president, on April 7, which could boost numbers for all Democratic candidates.

And next year’s Democratic National Convention will be in Milwaukee in July of next year.

Before then, another high court election could change the gender makeup of the state Supreme Court.

Next week, on Tuesday, April 2, voters will choose between two state appeals court judges running to replace Justice Shirley Abrahamson, scheduled to retire at the end of July. The first woman on the Wisconsin Supreme Court, Abrahamson won election four times and served as chief justice for nearly 20 years, from 1996 to 2015.

The two candidates vying to succeed her are both judges on the Wisconsin Court of Appeals: Chief Judge Lisa Neubauer, who garners solid support from liberals, and Judge Brian Hagedorn, the choice of conservatives.

Neubauer is married to a former state Democratic Party chairman Jeff Neubauer, and the couple have given thousands to Democrat candidates over the years, though she stopped after becoming a judge.

Their daughter is Democrat state Rep. Greta Neubauer, a Racine Democrat representing the 66th District.

Hagedorn, former chief legal counsel to then-Gov. Walker, has faced several weeks of unfavorable press stemming from multiple things: a 2005 blog post in which he compared homosexuality to bestiality; his speeches to a group that has supported criminalizing sodomy and sterilizing transgender people, and his help founding and running a Delafield school that bans gays.

Those stances have prompted two major Republican donors – the Wisconsin Realtors Association and U.S. Chamber of Commerce – to stay out of the race.

Yet the negative press of Hagedorn, which he has characterized as “attacks” on his Christian faith, could energize right-leaning religious voters, said Ryan Owens, a professor of political science at the University of Wisconsin-Madison.

“Since these elections tend to have low turnout, if enough voters agree with him that the attacks are, indeed, covert anti-Catholic and anti-religious attacks, he might be able to increase turnout among those predisposed to support him,” Owens said.

Even if Hagedorn and Kelly win, the court will remain female-dominated. Is there any reason it got to be this way other than coincidence?

Geske noted how fierce political campaigns have been in the state in recent years, and races for Wisconsin Supreme Court have been no different. While some potential candidates may be dissuaded by the political hardball, many women lawyers and judges have developed thick skins from handling sexism in their careers in the traditionally male-dominated profession.

“I think women in particular really know they have to fight to get there,” Geske said.

And perhaps an overlooked feature in all the harsh political fighting is that recent conservative candidates for the court have generally been good jurists, Owens said, making them tough to beat at the ballot box.

Female-dominated, and leaning conservative

The court is widely seen as split 4-3 in favor of conservatives, in what Owens calls a “moderately conservative court.”

Female justices are generally split 3-3 on the political spectrum, with Kelly often serving as the fourth conservative vote.

That’s a stark difference, at least in perception, from when Geske was first appointed to the court in 1993 by Republican Gov. Tommy Thompson. At the time, Geske said some assumed she would be a “clone” of Abrahamson, a prominent liberal voice.

“I have deep admiration for Shirley Abrahamson,” said Geske, who is generally considered to be a political moderate. “But I am not her. She and I disagreed on lots of cases.”

Geske recalled with a chuckle a press conference with Thompson when he announced her appointment to the high court. A reporter mistook her for another female judge who had opposed the governor on a significant case. A look of panic washed over Thompson’s face, Geske remembered, until she and Thompson realized the reporter’s mistake.

“I think if we’ve learned anything over the last several years, at the national level and even local government, women as a group can have as diverse views as anyone,” Geske said.

“Women might have similar thoughts on some issues,” she continued, pointing toward issues involving children and cases alleging sexual assault, “but it does not mean that they will come to the same conclusion.”

Some research supports Geske’s view.

A 2010 study titled “Untangling the Causal Effects of Sex on Judging” by Christina L. Boyd of University at Buffalo, SUNY, Lee Epstein of Northwestern University School of Law and Andrew D. Martin of Washington University in St. Louis found that the presence of women on federal appeals courts rarely had any effect on outcomes. The exception came when dealing with sex discrimination disputes.

And not only did female judges bring “distinct approaches” to those cases, but the presence of a female judge often caused male judges “to vote in a way they otherwise would not – in favor of plaintiffs.”

The findings were similar to conclusions from other research on the effect of gender in court judgments in cases dealing with employment issues, the Boyd study said. Their research also suggested that as the backgrounds and experiences of judges widen, so does the range of ideas and information brought to the judicial process.

Though the Wisconsin Supreme Court may be a ground-breaker in gender makeup, it is not racially diverse. All the justices are white. That characteristic concerns Geske.

“We need people of color up there,” she said. “That’s a sadness for me. Hopefully that will happen.”

State Supreme Courts by the numbers

The highest courts in all 50 states have five, seven or nine judges, and the only state high courts that come close to Wisconsin’s gender makeup are in Oregon and Washington.

Five of Oregon’s seven judges are female, while six of Washington’s nine are.

Georgia and Mississippi have the lowest ratio of female judges on their highest courts. Both have one among their nine justice seats.

The seven justices on Wisconsin’s high court serve 10-year terms before they must face reelection. They earn an annual salary of $159,297.

Should the Wisconsin Supreme Court become all female in 2020, it actually won’t be the first state Supreme Court in the history of the U.S. to consist of all women. In 1925, Texas temporarily convened a Supreme Court of three women justices to hear a case from which the court’s three permanent judges, all men, had recused themselves. The temporary court was disbanded after it made its ruling a few months after its inception.

Sally J. Kenney, a political science professor at Tulane University and an expert on women in politics and the judiciary, said she was unaware of any other court with all female justices.

Eric J. Ostermeier, an expert of political history at the University of Minnesota and the Center for American Women and Politics at Rutgers University were also unaware of any other instance.

A more permanent female Supreme Court justice would not be seated in Texas until 1982. And a majority-female state Supreme Court would not exist anywhere in the U.S. until 1991, when the Minnesota governor appointed a fourth woman to the seven-judge court.

Ethan Schmidt, junior investigator, contributed to this story.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.