>> The following program is a PBS Wisconsin original production.

>> Justice is no longer blind in Wisconsin Supreme Court.

That's what's at stake.

>> He is paying good lip service to the principles of impartiality and open mindednes.

>> Candidates spar during the only debate in the race for the Wisconsin Supreme Court.

>> To this esteemed committee, you must stop debating the humanity.

[MUSIC] >> And a tense nine hour hearing over gender affirming care for minors boils over.

>> Hey.

[MUSIC] Tonight on "Here& Now", we break down the Supreme Court debate with legal experts.

Then trans issues are foisted into the spotlight in national and local politics.

And what cutting the U.S. Department of Ed will mean for schools in Wisconsin.

It's "Here& Now" for March 14th.

>> Funding for "Here& Now" is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.

>> A fiery debate produced this week by Wisn featured the candidates in the high stakes race for the Wisconsin Supreme Court.

The conservative Waukesha Circuit Court judge, Brad Schimel versus liberal Dane County Circuit Court Judge Susan Crawford.

Tonight, we unpack the showing with two esteemed attorneys, Conservative Rick Esenberg of the Wisconsin Institute for Law and Liberty and liberal Jeff Mandell with law forward.

And thanks for being here.

>> Thank you for having us.

>> So I wanted to start by getting your overall reaction of who won first to you.

Rick Esenberg.

>> Well, look, I mean, I think that there's a tendency in these debates for people to watch them and declare as the winner the one that they preferred going into the debate.

I think that a lot of what was talked about is somewhat extraneous to the issues that come before a Supreme Court justice, but I think as a general matter, you have two candidates with two very different views of the law.

I think one is far more likely to think that judges can impose their policy preferences on the rest of us, and the other candidate is less likely to believe that that's a proper exercise of the judicial function.

>> Jeff Mandell to that.

>> Well, I agree with Rick that a lot of this seemed extraneous based on what we saw in the debate.

You know, if there's one candidate who is more activist and more interested in opposing their policy preferences, I thought that came off as being Judge Schimel, among other things, he was unable to articulate a single example of a time that he had issued a decision that didn't fit his ideological preferences or those of his supporters.

Any good lawyer or judge can think regularly of times where the law leads them in a direction they don't want to go.

>> But let's take a look at some of sorry at some of what came from the debate.

It was fast moving, covered a lot of ground, including the extraordinary spending in this race.

Elon Musk is spending big on Brad Schimel, and he counters that Susan Crawford is the recipient of George Soros money.

So let's listen to just one exchange on this.

>> I want to note something about donations in this race.

97% of the donors to my campaign are people who vote right here in the state of Wisconsin.

Almost 50% of my opponent's donors can't vote in the state of Wisconsin because they don't reside here.

>> I have support from all over the country, and it is because Elon Schimel is trying to buy this race, and people are very upset about that, and they are disturbed about that.

He is spending over $10 million that dwarfs the contribution of anybody else in any campaign in Wisconsin history.

of partisan money in the race pollutes the court?

>> I don't know if it pollutes the court, but I'm not sure that it's great for anybody.

This is the reality.

But I think that the kind of equivalencies that you're that you're hearing drawn here just don't exist.

Elon Musk is the world's richest man, and he is outspending everyone else.

Judge Schimel can say that 97% of his donors are in Wisconsin, but the vast majority of the money that's supporting him is coming from one place.

And it's not here.

>> Rick Esenberg on that.

>> Well, look, I think that the spending of money on these judicial races, which has increased exponentially in the past 20 years, is a function of courts involving themselves in policy disputes and not sticking to the law.

And this has been part of the left progressive legal project since, you know, before I began law school.

You know, I can answer, you know, Jeff's question about Brad Schimel opposing something that he may have been favored from a policy perspective.

You know, I've litigated high profile cases in Wisconsin for many years now, including when Brad Schimel was attorney general.

I run a conservative litigation shop.

Brad Schimel often, I think, agreed with us on the policy perspective we brought to the case, but understood that as attorney general, his duty was to defend the law and not allow his personal preferences to get in the way.

And there were a number of cases in which, you know, he was opposed to the position that Will and our clients took.

>> Thank you for that, for that.

Circling back to that response to Jeff.

Another big issue in the debate.

And now before Wisconsin Supreme Court is the 1849 abortion law.

Both candidates are saying that the other has made public their positions.

Schimel slams Crawford for representing Planned Parenthood, while Crawford slams him for saying the 176 year old law is valid.

Let's listen to that.

>> I was asked if the 1849 was a valid law.

1849 law was a valid law, and the answer is my answer was it was passed by two houses of the legislature and signed by a governor.

That means it's a valid law.

But what I said next was that there's a real question as to whether that law reflects the will of the people of Wisconsin now and today.

>> If they are pregnant and something goes terribly wrong in their pregnancy, I don't want them to lie.

Bleeding on a hospital bed while their doctors are huddled in another room trying to decide if they're close enough to death before they can deliver health care services to them.

>> So Rick, is abortion a litmus test?

Because won't it be decided by the current court before the newly elected justice takes their seat, or are there other decisions to come?

>> Well, it will be decided by the current court.

And, you know, I dislike this tendency in political campaigns to, you know, for people to take a statement that are made but made by their opponent and claim that they know better what the speaker than the speaker about what was said, he's explained his position, the 1849 law certainly was a valid enactment of law.

It was the law of the state for 125 years.

It's quite clear that it doesn't reflect the majority sentiment in the state of Wisconsin, and it probably needs to be changed now, the way that you do that is not by running to a court, the Supreme Court.

It's not the Supreme Court's job.

The way that you do that is by going to the legislature who represent the people.

That's what democracy is all about.

And he asked them to make the necessary changes.

>> Well, I guess what I would say is that the, you know, Rick is correct, that it is our legislature that makes laws.

But the problem is that what our Supreme Court does, is it interprets laws and applies the Constitution.

And what I heard from Judge Schimel is not that it's actually very similar to what Rick was decrying earlier about public policy, because he said, the question now is whether the 1849 law reflects the current views of Wisconsinites.

That is not a question judges ask.

Judges ask the question of what does it say?

What does it mean, and how does it line up with the Constitution?

>> Interesting.

So thank you for that.

On abortion, the other thing that we're seeing all over the place online, on air are these attack ads over sentencing decisions.

So let's listen to a kind of a longer clip on that.

In 2020.

You did sentence a child sex offender to four years in prison after prosecutors requested ten.

Do you regret that sentence?

>> I don't regret that sentence because I followed the law in that case, judge, as I always do.

I applied the law which says that judges have to consider every relevant factor in sentencing.

You have to consider both the aggravating and mitigating factors, and the Supreme Court has said you have to order the minimum amount of prison time you believe is necessary to protect the public.

That's what I did in that case, and every other case.

And my goal is always to keep the community safe.

And those have been sentences that have been successful.

They have kept the community safe, unlike the short jail sentences that Brad Schimel has entered over and over, where people have gone on to commit new crimes, that's when you know the sentence has failed.

>> To some of the ads people have seen about you, judge Schimel nine rape kits tested in your first two years as attorney general.

Do you regret that.

>> My opponent just revealed the problem in her judgment that in weighing all the factors, giving the minimum amount of time to a dangerous sex offender weighs higher than protecting the community, that's what she just revealed.

>> To you?

It is not what I said.

The court hasn't found.

One case.

sentence.

>> The sentence necessary to protect the community.

And that's what I have done.

And that's what those sentences did.

>> Judge Schimel on on rape kit.

>> By the way, on her ads.

She hasn't found one case in her ads where I failed to follow the wishes of the victim and the prosecutor.

The sentences I gave were at least what the victim and the prosecutor recommended in every one of them.

>> So all of that, and notwithstanding that, Jeff R sentences in criminal cases, a good measure of fitness for Supreme Court justice.

>> I don't think so.

This is something that circuit court judges that are trial court judges spend quite a bit of time working with, but it's really not what the Supreme Court does.

And it is, as Rick said earlier, really extraneous.

This is all of these attack ads.

A lot of this debate is really a side light from what matters about the court.

>> So, Rick, what should voters make of all of these attack ads then, that are focusing so heavily on sentencing, sentencing decisions?

>> Well, look, I think it's very, very difficult for voters who are non-lawyers to understand the role of a Supreme Court justice.

And I agree with Jeff.

The Supreme Court sentences no one, I think the criticism of a judge's sentencing decisions might reveal something about his or her judgment.

I don't get particularly exercised about these arguments about sentencing, because I think it's very, very difficult in the confines of campaign speech and campaign ads to get a handle on what actually happened in these cases.

>> Well, I'll just say that I agree with Rick that what you're looking for is more about who a judge is and what you learn about it from that.

And the question is not the sentences.

The question is what we took from the judges in their responses.

You heard Judge Crawford talking about balancing the factors that the law requires over and over and over.

Judge Schimmel's record really suggests that he's not the kind of objective jurist that he correctly says is what we need on the Supreme Court.

>> I think he is a fair and objective jurist, and I think that he also believes in law, that he thinks it's an exercise in interpretation and construction and not simply the imposition of policy preferences.

I think the current majority sees things differently, and my suspicion is that Susan Crawford will will vote in the same way.

>> All right.

Rick Esenberg, thanks very much.

Jeff Mandell, thank you.

Thank you.

>> Thank you.

>> The spring election is April 1st.

In the debate, you heard the topic of rape kits.

Next week on this program "Here& Now".

Zac Schultz reports on the background of that controversy.

And hears from both Brad Schimel and Susan Crawford on the issue tonight.

More from the candidates in this election that will determine the balance of the court with this excerpt from Zack's reporting.

>> One of the other cultural flashpoints that we're going through as a country right now has to do with trans rights in your estimation, do trans people have any specific protections under the law?

Are they a protected class?

Do they get any other category of protection when it comes to them being singled out as a group?

>> You know, that is a question where if a case came in front of me, that was making an argument about the rights of transgender people or making a claim that they'd been discriminated against or something like that, I would have to look at the law and see what protections were available, and hear out what the attorney's arguments were both for and against those kinds of protections.

Obviously, look at the facts to see what was happening in that case.

And then make a decision based on what I thought, the facts and the law required.

nothing specific in state or federal law that gives them any protected status.

want to answer that specific, specific question because I haven't researched it and I can't make a blanket statement that there are no such protections without actually looking at the law to make that determination.

>> Under the law, they're not in a particular protected class.

No, but in a courtroom, in the justice system, you don't have to be in a protected class to enjoy, to enjoy our constitutional rights.

You know, I, I do name changes.

Every Monday morning is when we hold name change hearings.

And I have it's routine that I have individuals who have transitioned or are transitioning, want to change their names.

I respect them for that decision, and I make those name changes as a matter of routine.

I've even had some cases where they've gone or gender change operation and want to change their birth certificate.

The law provides that they can do that.

That's what the law provides.

My personal opinions have nothing to do with that.

If they meet the standards under the law, they deserve the respect of the court and they deserve to have their rights granted to them.

[MUSIC] >> Hey.

>> Tensions roiled at the state Capitol during nine hours of testimony over a bill that would ban gender affirming treatments like hormones or surgery for anyone under the age of 18.

It reflects a national trend that has pushed transgender issues into the political spotlight.

Despite less than 1% of the population identifying as trans “Here& Now” student journalist Jane McCauley heard from the perspective of someone who is trans about the repercussions of this climate on the trans community.

>> It's difficult to know that there that those conversations are happening, and it's difficult to feel so powerless.

It's difficult to have people talking about your identity like it's something to be feared or hated or boxed away, hidden.

>> 24 year old be identifies as queer and trans.

>> My identity is something beautiful and to be celebrated.

That stark difference is difficult to live with.

>> B uses both he and they pronouns and has chosen to conceal their identity and name on account of their safety, their daily life is shifting under the new presidential administration.

male and female.

>> Within a week of being in office, President Trump issued executive orders banning trans people from women's sports.

The military, and defunding youth.

Gender affirming care.

>> When your government doesn't want you to exist, it is scary and it is a heavy burden.

I exist exactly as I am, and Donald Trump doesn't get a say in that.

>> Questioning trans rights at all levels has been an issue.

Republicans have been running on for the last few years.

It helped propel Trump to the white House.

he's not defining for America, for government policy, that, you know, there are two genders, you know, men and women.

He's moving to protect women from having to compete against male athletes, from having biological males invade their their locker rooms and other private spaces, their bathrooms.

So, you know, I certainly appreciate that.

That's something that I think is also very popular.

That's what the American people support.

>> The general public is told a lot about trans people, and very little of it is told by trans people.

>> Abigail Swetz is executive director of Fair Wisconsin, an LGBTQ plus advocacy group based in Madison.

>> And that is striking to me because of the fact that that creates a not only like an absence of knowledge, but an absolute misunderstanding of the reality of the lived experience of trans people.

>> Fair Wisconsin is looking toward policy protections for trans rights at all levels.

>> The local avenue.

The school board Avenue, the State Avenue.

Those are open, and we will go down that road.

>> It's difficult to know that there that those conversations are happening and it's difficult to feel so powerless.

>> It also, again, just confirms that this is not about any particular issue that folks have with trans people.

It's just about removing trans people from from society.

>> Therapists like Colten Schoenike are ready to provide support and resources.

Coltan is transgender and nonbinary and uses they them pronouns.

Their practice is based in the small city of Menominee, where access to LGBTQ providers is already limited.

the big city to access that.

We've been thinking about, you know, people having increased demand, increased need, also trying to be thoughtful about people, you know, not dropping off if they start to feel hopeless.

hotlines have spiked.

One hotline seeing a 700% jump after Election day be remembers needing that community support.

>> Being able to see trans adults not only surviving, but thriving in adulthood and loving their lives and the people that they became, gave me hope for my own future.

>> I also do not think you need to know every detail of someone's identity to respect them as people.

>> If you're not getting hit by the stones thrown at us, you're not standing close enough.

>> I am scared beyond belief for the future of trans rights in this country, for the future of trans people in this country.

I am also stubbornly hopeful that trans people and our allies will come together and will resist every attempt to strip us of our rights and our humanity.

>> Reporting from Menominee and Madison.

I'm Jane McCauley for "Here& Now".

>> The U.S. Department of Education this week announced it would lay off 1300 employees, effectively decimating its staffing.

Wisconsin is one of 20 states that has joined a lawsuit challenging the Trump administration over this move.

And to, quote, stop the dismantling of the agency.

To understand the impact, we're joined by Suzanne Eckes, professor of education, law, policy and practice at the UW-Madison School of Education.

Thanks very much for being here.

>> Thanks so much for the invitation.

>> So as an education policy expert, what is your reaction to cutting nearly half of the staff at the U.S. Department of Education?

quite an impact on the U.S. Department of Education as a whole.

And then specific departments, whether it's related to the group that's working on financial aid or the office for Civil Rights.

Over the years, Congress has enacted many statutes, federal laws authorizing additional functions of the U.S. Department of Education.

So, for example, federal loans for college students under title for Pell Grants, the Fafsa form for financial aid.

They oversee title one funds.

That provide schools with high numbers of low income students additional funding, special education and civil rights enforcement.

That's just to name a few of the areas that will be affected by these large numbers of layoffs in this last week.

>> So what will those large number of layoffs or possibly shutting the Department of Education down altogether mean in Wisconsin?

>> So when you are a parent or a family that feels that you have a student in the public school system, that maybe is experiencing harassment, bullying, disability discrimination, race discrimination, the office for Civil Rights was a way for families to file a complaint for free, and then the office for Civil Rights, one of these regional offices, usually Wisconsin, would work with the Chicago office, which is now not functional, would perform an investigation to ensure that the civil rights of students were being protected in a school setting.

So last year alone, there were 23,000 complaints to the office for Civil Rights complaints by families and parents.

Most of those 23,000 involve students with disabilities, and that's an increase of 18% from the previous year.

So there are still some functioning offices for office for civil rights, but it's going to cause quite a backlog and stall these parents who are seeking advice and assistance with these pretty serious civil rights matters.

>> So I know that the Trump administration has said that they would like to move some of the functions or all of the functions from the Department of Education back to the States.

Can Wisconsin absorb that?

>> Well, that's interesting.

So they talk about moving a lot of the tasks to the states.

But there's also been a lot of discussion about moving some of the functions of the U.S. Department of Education to places like Health and Human Services or the U.S. Department of Justice.

One issue that you have from shuttering the U.S. Department of Education, and whether you're moving it to the state level in Wisconsin or you're moving it to HHS or to, let's say, the Department of Justice is do these agencies have the expertise that the U.S. Department of Education had?

I believe you're losing some a lot of that expertise around.

For example, I've used the example previously around students with disabilities that presumably people who work in the U.S. Department of Education in that area have an understanding of that very complex area of law.

>> So the multi-state lawsuit that Josh Kaul signed on to over cuts to the Department of Education, asserts that it takes an act of Congress to dismantle the agency.

But how much havoc do these actions, lawsuits, judicial, you know, temporary injunctions and rescissions, you know, wreak on the people doing the work?

>> It really alleges that these layoffs are incapacitating the U.S. Department of Education to function.

It is severely harming these 20 states education system.

So that is one of the main arguments.

But to be fair, the U.S. Secretary of Education has always been authorized to allocate reallocate functions among the officers of the department and to establish and alter this organizational entity.

They have the right to manage federal personnel.

But I think what this litigation or this lawsuit is alleging is whether these cuts pretty severe cuts, have really exceeded the executive powers when it comes to the authority in the U.S. Department of Education.

And I think this is going to play out in litigation, much like we've seen some of the other cuts.

>> Indeed, professor Suzanne Eckes, thanks very much.

>> Thank you.

issues facing Wisconsin, visit our website at PBS Wisconsin.

Org and then click on the news tab.

That's our program for tonight.

I'm Frederica Freyberg.

Have a good weekend.

[MUSIC] >> Funding for "Here& Now" is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.