Conservative court win in Wisconsin offers critical lessons

Tuesday’s Wisconsin Supreme Court election results were stunning, and instructive. All hope had appeared to be lost for the winner, Judge Brian Hagedorn of the state appeals court. Hagedorn, former counsel to Republican Gov. Scott Walker, came under fire for his traditional Christian views on marriage — he helped found a school that requires teachers and parents to refrain from sex outside a marriage between one man and one woman — and for taking a traditional conservative approach to constitutional interpretation in cases involving human sexuality.

The criticism was unfair, but when it began, Hagedorn’s campaign began to take on water. The Wisconsin Realtors Association requested that he return a contribution. The United States Chamber of Commerce, a major player in state judicial races, decided to sit this one out. While some conservative advocacy groups made a last-minute push for Hagedorn, it appeared that, unlike many Wisconsin judicial races, outside money still favored the left-leaning Judge Lisa Neubauer, whose campaign outraised Hagedorn’s by almost a third. Hagedorn seemed to be on his way to defeat.

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But he won. As of Wednesday, Hagedorn led by a margin of 5,960 votes — about 0.5 percent of the total. Neubauer can request, and pay for, a recount, but it almost certainly would be unsuccessful.

The unexpected result suggests that, as a political matter, conservatives should not fear “social justice warriors.” Business interests, in particular, seem to grow weak in the knees at the prospect of being lumped in with the religious hoi polloi. To be seen as “unwoke” and insufficiently diverse can cause groups such as the Realtors to cower in the corner and clutch their wallets. That is their right, of course. But while tolerance is virtue, expressing it through a competing intolerance is not. The condemnation and shunning of traditional Christians and other religious adherents is profoundly illiberal.

Neubauer carefully tailored her criticisms of Hagedorn, arguing that his Christian orthodoxy and judicial conservatism reflected “ideological” bias and a poor “temperament.” But socially conservative voters heard the dog whistle. Along with suburban voters, they were able to see that neither a candidate’s faith nor a judicial philosophy that refuses to see the courts as instruments for social transformation is tantamount to “hate” or “bias.” Hagedorn ran up large margins in the traditionally Republican suburbs that surround Milwaukee and outperformed prior statewide judicial conservatives in northeastern and north central Wisconsin, reprising the coalition that carried the state for Donald TrumpDonald John TrumpGOP senator introduces bill to hold online platforms liable for political bias Rubio responds to journalist who called it 'strange' to see him at Trump rally Rubio responds to journalist who called it 'strange' to see him at Trump rally MORE.

Much of the current growling on the right about the “establishment” and “elites” is dyspeptic and counterproductive. It is simply false that conservatives, prior to 2016, never fought and never won. Republican elites should engage in the cultural battleground — and this race shows that their participation makes a difference.

But Hagedorn’s win doesn’t just suggest something about conservative political strategy. It is a vindication for religious tolerance. Recently, federal judicial nominees have been questioned by Senate Democrats for adhering to religious “dogma” or belonging to the Knights of Columbus. In Wisconsin, a highly-qualified nominee for the district court was dropped because he expressed orthodox Catholic beliefs. This statewide race seemed to reprise the same distasteful dynamic. Growing acceptance of gays and lesbians is welcome, but it ought not be accompanied by growing intolerance of those who still adhere to the traditional teaching of the Abrahamic faiths on human sexuality.

Wisconsin is a battleground state, one of the places where next year’s presidential election is likely to be decided. Democrats were encouraged by recent progressive wins in a 2018 state Supreme Court race and the gubernatorial and Senate races last fall. Hagedorn’s win is a much-needed shot in the arm for conservative Badgers. But this was a low-turnout, “base on base” election. Approximately 1.2 million voters went to the polls. By contrast, almost 2.8 million voted in Wisconsin in the 2016 presidential election.

This is a reminder that conservatives can win in Wisconsin next year. Whether they do win will be a matter of hard work, smart work — and some good fortune.

Rick Esenberg is president and general counsel of the Wisconsin Institute for Law & Liberty. Follow him on Twitter @RickEsenberg.