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Kelly: Karofsky proves to be a political justice

Empower Wisconsin | Nov. 23, 2020

By M.D. Kittle

MADISON — Liberal Supreme Court Justice Jill Karofsky has been accused of being a political activist judge.

Last week she proved the accusation, according to Karofsky’s predecessor, former Justice Daniel Kelly.

In one particular line of questioning during oral arguments last week in a petition challenging Gov. Tony Evers’ statewide mask mandate, Karofsky may also have shown she’s not up to the challenge of the job.

“Jill Karofsky’s questions were a master study of someone who is there for political purposes,” Kelly told Empower Wisconsin last week in an interview. 

Matthew Fernholz, the attorney for the Oconomowoc businessman suing the governor, argues that the Evers administration broke the law when it failed to get the Legislature’s consent for a new COVID-19-related emergency order locking down the state during the first 60 days of the outbreak. A ruling by the Wisconsin Supreme Court in May struck down the extended order for the same reason.

Yet, Evers has continued to issue subsequent emergency edicts — the declarations creating the mask mandates, among them — seemingly in defiance of state law and the Supreme Court ruling.

Karofsky asked Fernholz whether former Gov. Scott Walker’s 2013-14 emergency orders on propane hauling violated state law. The new justice’s reasoning seemed to be the Republican Walker should have been held to the same constitutional standard in issuing propane transport orders. Karofsky childishly asked why the businessman didn’t challenge Walker’s order then.

Fernholz had to remind the justice that the case before her was not a constitutional matter but a question of state statue, nor did it involve the former governor or his order.

Kelly said Karofsky’s line of questioning was irrelevant. It was a political show, with Karofsky asking partisan questions to give Evers “political cover.”

“That is an outrageous abuse of the position,” the former justice said. 

Kelly, who was appointed by Walker to the bench in 2016 following the retirement of Justice David Prosser, lost his bid for a full term on the court in April. Karofsky won the election, held at the same time as Wisconsin’s Democratic presidential primary, with the help of strong turnout from liberals hungry for an activist judge on the bench to replace the originalist Kelly.

The three liberals on the seven-member Wisconsin Supreme Court clearly support the emergency orders of the Evers administration, which has radically expanded the executive branch’s power during the pandemic.

Kelly, who serves as senior fellow at the Institute for Reforming Government, said last week’s oral arguments were quite revealing, separating the justices who apply the law as it is written from those who look at the law as they wish it to be.

“That’s not always the same thing,” the former justice said.

As Evers extends his mask mandate again, Kelly said he doesn’t expect a decision from the court anytime soon, maybe until after the new year.

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