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Conservative Wisconsin judge says he followed law, not politics

Wisconsin Supreme Court Justice Brian Hagedorn is a veteran of the fiercest partisan wars of the past decade.

As chief legal adviser to Gov. Scott Walker, a Republican, Justice Hagedorn drafted the 2011 law that stripped public sector unions of their collective bargaining rights. Then in 2019, he won a restricted election to a 10-year term on the Supreme Court with support from Republican state media and local networks.

But Judge Hagedorn, a member of the conservative Federalist Society, which in 2016 founded a private school that bans same-sex relationships between its employees and students, is no longer a darling of the right. In a string of 4-3 rulings in recent months, he sided with the court’s three liberal judges to stop an effort to purge 130,000 people from Wisconsin’s voters lists, block Green Party candidate and Kanye West from the presidential ballot to the general election and, on two occasions, rejecting President Trump’s efforts to undo the victory of President-elect Joseph R. Biden Jr. in Wisconsin.

Judge Hagedorn in recent days has found himself at odds not only with his political base, but with his fellow Conservative judges, who have spared little expense by showing their anger at him in legal dissent defending Mr. Trump’s case.

He spoke about the experience in an interview with The New York Times Friday. The following is an excerpt from the conversation, condensed and slightly edited for clarity.

What is your response to the Wisconsinites who supported you when you went to court and who are now deeply unhappy with some of the decisions you have made?

When I introduced myself I was fairly consistent in saying that I deeply believe that law and politics are not the same thing. Most of us probably have some hope that our favorite candidate, or our favorite politicians, that the law is in the same direction, but that’s not always the case. And I said I was going to be a textualist and an originalist. I deeply believe in these things.

And I think my decisions reflected that. And I made it clear even when I was running that I would be making decisions that I’m sure some, certainly Tories, might not like a political outcome and that when I do, I was just following the law. People should know that.

Do you feel any kind of kinship with Republican officials in states like Arizona and Georgia who have had to defend their electoral systems against resistance from the conservative base?

The hard thing to do, the brave thing to do, is fulfill your oath, especially when you know it’s going to make your political supporters miserable. It doesn’t matter what your role is, whether you’re Georgia Republican Secretary of State or someone else elected.

I am therefore not unaware of the political criticisms that some of my decisions would bring. I’m well aware of that, and so I think it’s a wonderful reflection of how strong our country is when people can do what they think is right and fulfill their oath as they understand it, no matter what. the political pressure that may arise.

How did you become aware of some of these criticisms?

Talk radio in Wisconsin, especially on the conservative side, is very important. I turned on the radio one morning while driving to work and heard how horrible I was. It is therefore difficult to miss it.

Yes, I was called a traitor. I was called a liar. I was called a fraud. I was asked if I was paid by the Chinese Communist Party. I was told that I could be tried for treason by a military tribunal. Of course, I received a lot of interesting and sometimes gloomy messages.

Does it change the way you approach your job, having that kind of feedback?

Maybe members of the public are forgetting this because their civic culture really doesn’t know how to debate issues in a very healthy way right now. And there’s a sort of tribal understanding that you’re either with us or against us.

I have five young children and of course there is also some discomfort when your child asks if it is okay to play in the front yard or if they should just stay in the yard.

What do you think of the president’s broader conservative push to change election results and the widespread rejection of this by courts on multiple levels?

I cannot speak to all the other cases, but certainly in the cases before us, they have asked us to reject this election. There was certainly nothing in the nature of the law or in the facts to come close to that, and I made that clear. And I think if you make a claim like that, you better have your evidence and you better have the law on your side and stand up for your case. And at least in the cases before us, that was not the case.

Why then did you think that if it was so easy for you, your Conservative colleagues on the ground saw it differently?

I cannot speak for them on these matters. For me, there was a fairly clear application of a well-established law and this is how I moved forward to decide these issues.

The dissent, in particular, seem very personal in their dissatisfaction with the majority decision, and I was curious, behind the scenes, what those debates or arguments looked like.

Each judge must decide, and this is true in each court, how he wishes to explain his thinking and reasoning to the world around him. Sometimes we all do it with passion. I think every judge or judge has occasionally written heated dissent and disagreement, and that’s a normal part of judgment on appeal.

How did you vote in the November elections?

I received the absentee ballot and mailed it.

Were you generally comfortable with this process?

I was.

Can you tell me if you voted for President Trump?

I wouldn’t want to say anything like that on the record.

Why not?

No. 1, whom I voted for did not affect my decision and did not affect my decision. No. 2, I do not think it is appropriate for judges to take a position on partisan candidates. We also have canons of judicial ethics on the non-approval of candidates. We are a non-partisan tribunal. I mean, I was certainly elected with the backing of many Tories, but I’m not a Republican judge on the court.

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