The Milwaukee Journal Sentinel recently reported that appellate Judge Brian Hagedorn, the conservative-backed candidate running for Wisconsin Supreme Court, wrote provocative blog posts while in law school, commenting on homosexuality and abortion.
In 2005, Hagedorn responded to the landmark case of Lawrence v. Texas, which struck down Texas’ anti-sodomy law, by saying there is no longer any way to Constitutionally distinguish homosexuality from bestiality. That same year, he called Planned Parenthood a “wicked organization more committed to killing babies than helping women.”
At present, Hagedorn has defended his posts and affirmed his beliefs, asserting that these personal opinions should not matter to voters. The fundamental question here is this — should they?
Some news articles say he “compared homosexuality to bestiality.” This is an exaggerated reduction of the post, as Hagedorn was echoing Justice Antonin Scalia’s dissenting opinion on a Supreme Court Case. The majority opinion ruled against the Texas statute that made it a crime for two persons of the same sex to engage in consensual sex. In other words, in this case the Court could not find a legitimate government interest to interfere in people’s private lives. In Scalia’s dissent, however, he asserted that the state does have such interests, and voters have maintained that criminal laws against adult incest, obscenity and bestiality are acceptable forms of state intervention into private lives.
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Therefore, in terms of this ruling on constitutionality, it has become harder to distinguish which private acts states should leave alone and which ones they should protect people against.
“My point here is not a moral one, but a legal argument,” Hagedorn wrote. “There is no way to distinguish between these two [homosexuality and bestiality] … Certainly legislatures can distinguish … but the idea that homosexual behavior is different than bestiality as a Constitutional matter is unjustifiable.”
To be clear — neither Scalia nor Hagedorn believe bestiality is comparable to homosexuality in the literal sense. Rather, if the Constitution would prefer for the state to interfere in some private sexual acts but not others, it becomes difficult for the law to establish a legitimate state interest for intervening in such private action.
The Planned Parenthood blog post also has a back-story. Hagedorn commented on a news article about the organization’s refusal to submit the medical records of patients under 14 years of age to state authorities who use the data to find and help victims of sexual abuse. Health providers are required by law to report such cases.
With this background, and given the widely held anti-abortion sentiments of Americans in 2005, the post is reasonable. Still, a sizable minority (about 37 percent) of Americans today believe abortion should be illegal in all or most cases. In fact, the claims that Hagedorn’s beliefs assert “extreme partisanship” and “fringe radical beliefs” are largely unfounded.
The legality of abortion is not as partisan an issue as people may think it is, according to a FiveThirtyEight analysis. A large block of Republicans have some sympathies to abortion, and vice versa — a small, but significant portion of Democrats oppose it. As it turns out, the issue unites the parties more than it pits them against each other.
Thus far, it appears Hagedorn’s language was neither strong nor partisan, but can anything be said of the character of this Supreme Court candidate? Unfortunately, these posts really do not say much about how he will behave on the bench. Unlike what is required of political actors — that they be responsive to their constituents — justices have no obligations beyond adherence to the law, as eloquently said by Chief Justice John Roberts.
Anyone can set aside their opinions to do the work of a judge. Both Hagedorn and his liberal-backed opponent, Lisa Neubauer, have said they will set aside their opinions. If all candidates for Wisconsin Supreme Court Justice are honestly telling the public they will be impartial regardless of personal convictions, how is a voter to determine which judge to vote for? It is a tough decision, and it is often given to voters who rely heavily on the “D” or “R” immediately following a candidate’s name.
A pitfall of nonpartisan elections is that people will turn to arbitrary things like appearance, gender and ethnicity. Many states understand the issue of partisanship in what ought to be a nonpartisan race, and have adopted a system called “assisted appointment” as their method of judicial selection. Similar to how the president nominates and the Senate approves Supreme Court justices, the state’s governor nominates its state Supreme Court justices with the help of a commission typically made up of attorneys. This may be a much better system that Wisconsin should consider.
For the time being, however, voters should remain critical of what they read in the news.
Lianna Schwalenberg ([email protected]) is a recent graduate with degrees in communication arts and philosophy.