A problem, before a solution: The problem is that a large number of registered voters in Wisconsin do not know enough about or do not have an opinion of the two candidates running in the April 1 election for a seat on Wisconsin’s Supreme Court. Results of the Marquette Law School Poll released on March 5 found that 38 percent of voters do not have an opinion about Brad Schimel, former Wisconsin attorney general and now a Waukesha County circuit judge, and 58 percent do not have an opinion about Susan Crawford, a Dane County circuit judge. The two are squaring off in what some commentators have called the most important election underway currently in the United States.
One of the current justices, Ann Walsh Bradley, is retiring after 30 years of serving on the court. That means that the outcome of the formally nonpartisan race between Crawford, who is strongly backed by Democrats, and Schimel, who is strongly backed by Republicans, is regarded as likely to have decisive impact on several major upcoming cases before the court. Yet, with election day approaching quickly, the candidates have not established their identity with many voters.
The solution is two “Get to Know” programs at Marquette Law School, hosted by Derek Mosley, director of the Lubar Center for Public Policy Research and Civic Education, in which Crawford and Schimel talked about who they are and what they stand for. The public conversations, on February 18 with Schimel and Feb. 28 with Crawford, provide good looks at the candidates in a format that is welcoming. And each is available online (see links at the end of this post).
Both candidates talked about their personal stories. Schimel was born in West Allis, grew up mostly in Waukesha County, and was a long-time prosecutor in Waukesha County, including a run as district attorney. Then he was elected Wisconsin attorney general, serving 2015–2019. Crawford grew up in Chippewa Falls. She was hired by Jim Doyle, then the attorney general of Wisconsin, to work in the state justice department and subsequently worked as a lawyer for the state Department of Corrections and the Department of Natural Resources before becoming chief legal counsel to Doyle while he was governor. She also was in private practice as a civil litigator before becoming a judge in 2018.
Mosley asked Schimel why he was running for the Supreme Court. “I watched what happened in 2023,” he said, when Judge Janet Protasiewicz defeated former Supreme Court Justice Daniel Kelly in the most expensive judicial race in American history. That swung the balance of the court to the side widely considered more liberal and led to rulings such as reopening work on legislative district boundaries in Wisconsin. Schimel said that Protasiewicz gave her opinion of some legal issues during the campaign. He said that justices need to have an open mind on issues “until the last word is said.” He described himself as “a judicial conservative” and said that, for a justice, “the foundation of what you do is you don’t make law.”
In her conversation with Mosley, Crawford said that “My judicial philosophy is pragmatism” and that, as a judge, her goal is to apply the law fairly and impartially. “I don’t look at judicial issues as abstract principles,” she said. She said her broad experience in many areas of the law makes her “exceptionally well qualified” to serve on the Supreme Court. “I’m running to be a fair and impartial justice on the Supreme Court,” she said.
At a time when large numbers of registered voters say they don’t know enough about either of the candidates, the “Get to Know” label for a series of Lubar Center programs is particularly apt. The one-hour video of the Feb. 18 conversation with Judge Schimel may be viewed by clicking here. The one-hour video of the Feb. 28 conversation with Judge Crawford may be viewed by clicking here.
The Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.
The E. Harold Hallows Lecture is an annual highlight at Marquette University Law School. Most often delivered by a judge, the lecture is an opportunity to welcome into our community an accomplished individual from whom all of us interested in the law—students, faculty, other judges, lawyers, and all manner of interested individuals—might learn.
This was not Judge Scudder’s first trip to Marquette Law School, as he presided at the Jenkins Honors Moot Court Finals in 2023 (his similar service in 2021, during the COVID era, having been undertaken remotely by Teams). The judge keeps close to law schools, it would seem—for example, teaching national security law at the University of Chicago Law School and advanced federal jurisdiction at the Northwestern University Pritzker School of Law. Judge Scudder’s interest in legal education, especially in the Seventh Circuit’s region of Wisconsin, Illinois, and Indiana, is impressive and inspiring more generally.
Judge Scudder’s Hallows Lecture was titled “Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance.” It proceeds in two main parts.
The first half explains and defends the standing requirement in federal courts. The judge describes the precept’s basis in the “Cases” or “Controversies” requirement of Article III of the Constitution, defends it as a structural limitation on the exercise of judicial power, yet acknowledges the ideological lens through which many individuals seem to view standing issues. The lecture offers a defense of the cases and a strong, institutions-based justification of the concept.
The lecture’s second half explores the relationship between the Case or Controversy requirement and free speech. It emphasizes that the standing requirement—particularly by disfavoring pre-enforcement facial challenges to government policies on very broad grounds—appropriately encourages people to hash out their differences in forums envisioned and intended as policy-setting. This half laments the echo chambers into which many individuals have placed themselves in our society and hopes that more open, respectful, and constructive dialogue, outside of courts, can occur to sort out the “cultural” issues and policies needing resolution at all levels of government.
Here’s a flavor:
. . . . This is how Article III’s limitation on the exercise of judicial power leaves policymaking, and the difficult line drawing it often entails, to the exercise of free speech. Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and, often, find common ground where agreement seems beyond reach.
If that framing is too idealistic in today’s times, I would hope skeptics would at least recognize that the alternative—permitting very difficult legal questions to come to federal court based only on a showing of a genuine worry—casts a vote of little confidence in the role speech can play in finding solutions, or perhaps tolerable compromises, to some of the most divisive questions of our day. And even if these culture war lawsuits should not be viewed as a vote of confidence in federal courts as the ultimate decision makers, they put great pressure on principles of restraint designed to allow democratic processes—whether at the national or local level—to offer answers and outlets for persuasion and compromise in the first instance.
Our constitutional design envisions constitutional answers coming in slower-paced increments than contemplated by pre-enforcement facial challenges like the one Parents Protecting Our Children lodged against the Eau Claire policy. It is not happenstance that the architect who designed the Supreme Court, Cass Gilbert, thought the tortoise an appropriate decorative and symbolic feature for the building’s design. In the same way tortoises move slowly, sometimes the law develops best when principles, doctrines, and answers come with time and, I might add, with more speech and dialogue helping to bridge social divides. Pre-enforcement facial challenges, however, often result in expansive injunctions that apply in one fell swoop—the sort of forward-looking policymaking that is best left to the more democratic branches.
Judge Scudder’s lecture was outstanding, even beyond its timeliness. While versions of it will appear in the fall Marquette Law Review and Marquette Lawyer, one can watch the lecture here or read a working copy of it here.
Now that I have introduced myself in my first blog post, let me make good on some of my promises to look back on—and forward to—the criminal justice system in this region and beyond. This is an appropriate place to do so: Marquette University and the Milwaukee County District Attorney’s Office played a significant yet mostly unknown role in improving how witnesses in criminal cases have been treated in our country during the last 50 years.
The heart of the adversarial justice system in the United States is the direct involvement of citizens in a structured process that peacefully resolves conflict by balancing the rights of individuals with the collective needs and responsibilities of the community. People reluctantly encounter the criminal justice system in four general categories: as defendants, victims, witnesses, and jurors. Each category shares one thing in common: almost no one volunteers or wishes to be so identified. And while the resources directed toward victims and witnesses and defendants have improved over time, a strong need persists to reexamine and refresh how we treat our community members in the contemporary court system. A new generation of lawyers should embrace that challenge, because how we treat people in our justice system is among the clearest mirrors of who we are as a community.
In 2008 Professor Dan Blinka moderated a panel at the Law School that discussed criminal plea bargaining in Wisconsin and asked about the role of victims in that process. One of the panelists, recently retired Milwaukee County District Attorney E. Michael McCann, answered a question about the victim’s role in plea negotiations and how much things had changed in his 38 years as District Attorney, by saying, “I recommend that you read an article out of the Notre Dame Law Review from about the early 1970s.”
Mr. McCann was referring to an article authored by then Milwaukee County First Assistant District Attorney Michael Ash in 1972, when Ash was only five years out of law school. On Witnesses: A Radical Critique of Criminal Court Procedures, 48 Notre Dame L. Rev. 386 (1972), was a scathing assessment by Ash that, despite longstanding calls for reform of how witnesses were treated in criminal court systems, “the witness, especially the witness in criminal courts, is more abused, more aggrieved, more neglected, and more unfairly treated than ever before.” Id. at 388 (footnote omitted).
Ash called for action and focused on seven possible areas of reform, many of which are now standard practice in court systems and district attorney offices throughout the country—and arguably others that should be. They included:
First, Ash advocated for what he called “witness’ appearance-control projects,” which emphasized reducing unnecessary court appearances by collecting demographic information that would allow witnesses to be placed on call and to come to court only when needed. He also recognized the need to provide witnesses with information in appropriate languages.
Second, he proposed the creation “witness liaison and support squads,” with dedicated specialists to act as information bridges between victims and the court process. This suggestion is now directly embodied in dedicated victim/witness advocates who work in every district attorney’s office in the country.
Third, he promoted the concept of “early screening and diversionary devices,” predicated on the idea that many of the cases presented to prosecutors for charging could be better handled by deflection to rehabilitative processes rather than the criminal court system—what is now called the “early intervention” process in the Milwaukee County District Attorney’s Office.
Fourth, this young lawyer argued for mandatory pretrial conferences between prosecutors and defense attorneys within a short time after the first appearances in court. The idea was that prosecutors would offer one-time best deals for quick acceptance of responsibility. The hope was to dramatically reduce the number of appearances by witnesses and victims in overcrowded trial dockets.
Finally (in this list), Ash argued for justly compensatory witness fees and creating facilities for the comfort and convenience of the witnesses and victims—what we would now refer to as witness waiting rooms.
Michael Ash’s analysis, critique, and call for action came at a unique and opportune time. The Federal Law Enforcement Assistance Administration (LEAA) focused on the conditions of witnesses in the criminal courts around the country in the early to mid-1970s. Influenced by Ash’s article, LEAA funded the first victim/witness pilot programs in the district attorney’s offices in Brooklyn and Milwaukee. Titled “Project Turnaround,” the express purpose of the funding was to create model assistance programs for victims, encourage victim cooperation, and improve prosecution.
Like most great ideas that catch fire, Mike’s focus was a confluence of factors, and it still needed someone with passion and drive to make the abstract a reality. Here, Mike Ash’s great idea was blessed not just by the confluence with LEAA but by a friendship formed at Marquette University.
In 1975, Jo Kolanda, a Marquette University graduate and a social worker in the Milwaukee County welfare department, heard about Project Turnaround from Ash, who encouraged her to apply but recused himself from the hiring process because of their friendship. In her 2002 oral history interview, Kolanda recounted her experience forming the first victim-coordinator program in the country. She related the challenges that she initially experienced in piercing the courthouse culture that centered around the judges and the attorneys—but not the people brought into that environment.
Kolanda’s perseverance paid off because when the three-year demonstration project ended, she had objectively demonstrated the value of the program, which Milwaukee County adopted at the urging of District Attorney McCann. Her contribution was not finished there. In 1980, she and others convinced the Wisconsin Legislature to pass the country’s first statutory crime victim bill of rights—what is now Chapter 950 of the Wisconsin Statutes.
The success of the Milwaukee and Brooklyn projects led to widespread adoption of the concept of dedicated victim/witness assets within district attorney’s offices in the country. The focus on the citizen has led to a gradual evolution in improving conditions and services for witnesses that continues to this day.
Recent examples of continued innovation from the Milwaukee District Attorney’s Office include the creation of the first restorative justice component in a DA’s office in the 1990s; the development of an in-house dedicated witness-protection program in 2008 to address intimidation and dissuasion of crime witnesses and victims; and helping envision and advocate for the creation of the Sojourner Family Peace Center, with comprehensive services for victims in a dedicated facility devoted to therapeutic intervention. And arguably the state’s adoption of Marsy’s Law into a constitutional protection is an extension of the work pioneered by Ash and Kolanda in the ’70s.
I started by saying that Marquette played an outsized role in changing how victims are treated in the country. A core value of a Jesuit education is aspiring to uplift human dignity and being a courageous voice for the powerless, the oppressed, and the dispossessed. Michael Ash was a polio survivor. He lost the use of his legs when he was a sophomore at Marquette University High School but fought his way back to graduate as his class president and then to graduate from Marquette University and, thereafter, from Harvard Law School. Jo Kolanda was a single mother who graduated from Marquette University and was working as a social worker in Milwaukee County’s welfare department when she got the call from Mike.
Treating people with dignity and compassion was not an abstraction for either; it was a core part of their identity and values they advanced with humility and courage. The network of relationships that Marquette undergraduates and Marquette law students make is not just a transactional advantage. It is a recognition that your friend, your colleague, your alum shares your calling to devote a part of his or her life to making communities better.
If Ash and Kolanda were here today and spent a day in the Milwaukee County Circuit Court, they would see some of the same challenges they saw in the late 1960s and early 1970s. But they would also acknowledge (modestly, because they were profoundly humble, generous people) that their vision for change had an impact, even if their contribution is mostly hidden, forgotten, or taken for granted today. They should be remembered and uplifted as models of young professionals, one a new lawyer and one a new social worker—who overcame challenges in their personal lives, and perhaps because of those challenges, helped make the quality of justice better for millions.
A problem, before a solution: The problem is that a large number of registered voters in Wisconsin do not know enough about or do not have an opinion of the two candidates running in the April 1 election for a seat on Wisconsin’s Supreme Court. Results of the Marquette Law School Poll released on March 5 found that 38 percent of voters do not have an opinion about Brad Schimel, former Wisconsin attorney general and now a Waukesha County circuit judge, and 58 percent do not have an opinion about Susan Crawford, a Dane County circuit judge. The two are squaring off in what some commentators have called the most important election underway currently in the United States.
The Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.