Daniel Bice

Milwaukee Journal Sentinel

Like many judicial candidates, state appeals court Judge Brian Hagedorn isn't eager to discuss his positions on some of the most controversial issues of the day.

But that wasn't always the case.

Hagedorn, who is running for the state Supreme Court, wrote a blog beginning in 2005 in which he addressed readers as "fellow soldiers in the culture wars" while posting sometimes provocative comments on homosexuality and abortion.

For example, Hagedorn twice wrote that a landmark gay rights ruling by the U.S. Supreme Court striking down a Texas anti-sodomy law could lead to the legalization of bestiality, sex with animals, in America.

"The idea that homosexual behavior is different than bestiality as a constitutional matter is unjustifiable," he wrote in October 2005.

Lawmakers could draw a distinction between same-sex relationships and bestiality as a matter of public policy, Hagedorn wrote. But he called the Supreme Court's decision overturning anti-sodomy laws a travesty that "should render laws prohibiting bestiality unconstitutional."

"There is no right in our Constitution to have sex with whoever or whatever you want in the privacy of your own home (or barn)," he wrote.

Some other conservatives argued at the time that the Supreme Court case would also lead to the legalization of bigamy and incest. This has not happened in the 14 years since the ruling.

Planned Parenthood a 'wicked organization'

The Journal Sentinel's review of all of Hagedorn's blog posts from April 2005 to August 2006 turned up equally passionate posts about abortion rights.

In one titled "Another reason why I hate Planned Parenthood," Hagedorn called it a "wicked organization" that was more devoted "to killing babies than to helping women." He said his litmus test for voting in an election was a candidate's position on abortion.

Hagedorn said he had committed himself to praying and lobbying to stop abortion. He went on to say his convictions on this issue and others were given to him by God.

"The Lord has laid three fundamental passions on my heart: 1) Protecting the dignity and sanctity of human life, 2) Defending and preserving the institution of marriage, and 3) Promoting racial reconciliation in the church and culture," he wrote in November 2005.

Hagedorn, an evangelical Christian, wrote that he favored having someone who believes like him on the Supreme Court.

"All things being equal, someone who acknowledges the true God, seeks wisdom from Him, and cares about all people because they have been made in His image is better than someone who is not a Christian," he wrote in October 2005.

Hagedorn, former chief legal counsel for former Gov. Scott Walker, appeared to qualify the point a day later by writing that he'd prefer a brilliant, conservative, non-Christian jurist to a moralizing evangelical on the bench.

Hagedorn squares off against state appeals court Judge Lisa Neubauer, who has the support of liberal groups and individuals, in the April general election.

One highly regarded expert in legal ethics told me that Hagedorn's ideological blog posts are likely to open Hagedorn to requests for recusal on issues he wrote about or from groups he criticized,such as Planned Parenthood and the ACLU, if involved in a case before the court. Judges are to recuse themselves if a reasonable person would likely question their ability to be impartial knowing their past comments on an issue.

But Charles Geyh, a professor at the Indiana University Maurer School of Law, said he also expects Hagedorn, if elected, to decline sitting out cases on the grounds that he can set his views aside in the courtroom.

Geyh said there is another, more important issue at stake.

"What concerns me is not his views per se, but his characterization of those views as God-given 'fundamental passions,' which raises questions as to whether he can set those passions aside as the law requires," Geyh said. "If he had made those statements in the last couple of years, I would doubt his fitness for judicial office."

Geyh, who has no record of donating to candidates, said it would be up to voters to decide to their satisfaction that a dozen years after writing his blog Hagedorn "has his passions under control and can be counted upon to do his best to set his urges aside and follow the law."

"I should add that I am not so naïve as to suppose that the judge’s ideological orientation won’t influence his interpretation of what the law is in difficult cases," Geyh concluded. "But that is quite different from a judge who is prepared to disregard the law in pursuit of his 'fundamental passions.'"

Asked about the blog posts, Hagedorn's campaign issued a lengthy statement from political adviser Stephan Thompson.

Thompson said Hagedorn's personal views would not affect his actions on the high court.

Thompson, however, would not say where Hagedorn now stands on the issues raised in his blog, which was named "Anno Domini" (Latin: "In the year of our Lord"). At the time he was writing the blog, Hagedorn was a 27-year-old father of two, intern at Foley & Lardner law firm and student at the prestigious Northwestern University law school.

"When he put on the robe, Judge Hagedorn took an oath to be impartial and apply the law on every case, and he will always be faithful to that oath and to the people he serves," Thompson said in the statement. "He believes personal political values have no place on the Supreme Court and his job is to say what the law is, not what he thinks the law should be."

Thompson saidthe blog items were written "long before he put on a robe and took an oath."

Not surprisingly, the liberal advocacy group One Wisconsin Now and Planned Parenthood have doubts about Hagedorn's ability to be objective.

"Judge Hagedorn's extreme statements make it clear that the people of Wisconsin can't trust him to be fair and impartial on issues related to women's health," said Mel Barnes of Planned Parenthood Advocates of Wisconsin, which hasn't endorsed in the race.

Neubauer's camp responded with a statement from Tyler Hendricks, her campaign manager, who criticized Hagedorn's "personal, extreme and radical agenda." Neubauer doesn't appear to have written a blog in the past.

Echoes of Rebecca Bradley writings

Hagedorn's blog posts are reminiscent of the controversy over state Supreme Court Justice Rebecca Bradley's columns and letters to the editor for the Marquette Tribune. In them, Bradley criticized gays and compared abortion to slavery and the Holocaust.

Bradley, who first had been appointed by Republican Gov. Scott Walker, won a full term after One Wisconsin Now publicized these writings.

Hagedorn's old writings are more mature and nuanced than Bradley's college columns. When he shut down his blog, he was 7 years older than Bradley was when she was writing pieces for the student newspaper.

In one post, Hagedorn noted that his views on race had evolved over the years and that he leaned in favor of thinking the U.S. Constitution does not block states from enacting affirmative action programs to address racial inequality.

Hagedorn also wrote a letter to the editor of the Kenosha News in 2008 in which he said he believed the nation had taken a "great leap forward" by electing Barack Obama president, although he noted he had voted for Republican nominee John McCain.

But he also said in his blog that the NAACP, the national civil rights group, was a "partisan hack" and a "disgrace to America" that should be repudiated by all who want racial reconciliation in the nation. He wrote the item after the NAACP president had, among other things, compared some Republican judicial nominees to the Taliban.

View on gay rights

According to one post, Hagedorn said he worked at a firm that posted pictures of gay and transexual teenagers, along with their stories, during Gay & Lesbian Pride Month. He said he went to his human relations supervisor, who he noted was lesbian, to complain about what he said was indoctrination.

"What was being sold was not tolerance, but homosexual propaganda," Hagedorn wrote on his blog. "Moreover, this served to create a hostile work environment for Christians. In the end, I was told too bad."

Both posts saying the Supreme Court decision on anti-sodomy statutes could lead to the legalization of bestiality were prompted by stories in which individuals had sex with animals.

"What if the dog liked it and frequently initiated it? Shouldn't the ACLU come to the rescue of the man for having sex in the privacy of his own home (or here, his own doghouse)?" Hagedorn asked on Dec. 26, 2005. "Doesn't the idiotic attempt at reasoning, or more properly, the sweeping, grandiose, unsupported generalizations about 'liberty' that was Lawrence v. Texas cover precisely this sort of thing?"

He called the Supreme Court's ruling in Roe v. Wade "the worst and most unjustifiable decision in history."

"We are now 45 million Americans short. That's right, 45,000,000 human beings," he wrote in January 2006, estimating the number of abortions that had taken place since the Supreme Court ruling legalizing the practice. "For me, I highly resolve again today that these lives shall not have died in vain."

Hagedorn said he liked former U.S. Sen. Russ Feingold but couldn't vote for the Wisconsin Democrat because of his support of abortion rights. "A candidate's position on abortion is my litmus test as it is for most conservative Christians," he wrote in June 2005.

Rick Esenberg, the head of the conservative Wisconsin Institute for Law & Liberty, said any criticism of Hagedorn for his old blog posts on gay rights and abortion represent a "tired trope."

Esenberg said many scholars consider the Supreme Court's decisions on abortion and the Texas anti-sodomy law to be "constitutionally problematic." Beyond that, he said, Hagedorn's perspective would fall in line with that of most evangelical Christians, who are highly critical of Planned Parenthood.

Esenberg said a judge can oppose a group — on either the left or the right — and still be able to rule fairly on its legal rights.

"Brian is a well-trained and careful lawyer who understands the difference between his religious and political views and what the law requires," Esenberg said. "To deny that any such distinction exists is a bad faith reading of what he wrote and fundamentally misunderstands the role of courts and judges."

Esenberg made a $500 donation to Hagedorn's campaign in December.

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Thompson said Hagedorn had no regrets about writing the sometimes provocative and personal blog, turning the question into one about his religious beliefs.

"Judge Hagedorn is not ashamed by his faith. It has shaped his commitment to his family and the dignity of all people throughout his life," Thompson wrote.

"It also doesn’t mean he will fashion the law to fit his own beliefs. His whole campaign is based on the premise that a judge’s job is to say what the law is, not what the judge thinks the law should be."

Contact Daniel Bice at (414) 224-2135 or dbice@jrn.com. Follow him on Twitter @DanielBice or on Facebook at fb.me/daniel.bice.