While Higginbotham had always kept the rule of law foremost in his legal opinions, it didn’t mean that he didn’t have strong personal opinions about the state of the judiciary and where it is going. Instead of sifting and winnowing the evidence and then applying the law, Higginbotham feels that ideology is the prime force behind many legal opinions.

“If you look at who is sitting on the Supreme Court, you know how they are going to rule before they even get the case,” Higginbotham said. “When a case goes up to them, you know where it is going to go an overwhelming majority of the time. The difference — it’s been a pleasant surprise — has been Justice Hagedorn. He was a colleague of mine on the Court of Appeals. I saw how he made decisions. He was a pretty good appellate judge even though he worked for Governor Walker. I was a little weary about his appointment to the Court of Appeals. But he came through. He did the job correctly. And on the Supreme Court on some very key decisions, he’s doing a great job. He’s approaching it the way I think a justice would be approaching the cases. I am not so sure about some of the other justices on the conservative side. I am very concerned that they are making decisions based on their own ideology and outcome that they want to see and then try to approach it by stretching and straining the legal analysis in order to fit that outcome. I’m sure they would say, ‘No we aren’t.’ But I’ve talked to other judges and lawyers and there is a real great sense out there that’s what is happening on that court. Clearly the Supreme Court is now no longer the great Supreme Court it was under Chief Justice Shirley Abrahamson. The Wisconsin Supreme Court had an incredible reputation clear across the country. Later after all of that changed and the conservative majority moved in and all of the in-fighting happened, I would go to judicial conferences in other parts of the country and judges would ask, ‘What’s going on there in Wisconsin.’ The Wisconsin Supreme Court’s reputation was sullied. It had really been tarnished. And it was no longer recognized as one of the great state Supreme Courts.”

And increasingly, it seems that qualifications are secondary considerations on whether or not someone is nominated to be a judge.

“The ABA is no longer involved in the selection of U.S. Supreme Court justices, not to the extent that they were,” Higginbotham observed. “The ABA still does background checks and probes candidates and appointees. But I don’t think their opinion holds the level of weight that it once did. And of course, with Donald Trump, he just got rid of it. The other thing that really bothers me, even if you take a look at what is happening in Congress right now, in the Senate particularly, around President Biden’s announcement that the next justice is going to be a Black female, nobody in the Republican Party in the Senate is considering whether or not anyone is qualified. And that used to be a big deal. It was not uncommon for a Supreme Court nominee to get a massive, positive vote out of the Senate when the consideration was, ‘Is this person qualified?’ Whether or not you are qualified now doesn’t seem to play any role in deciding who sits on the U.S. Supreme Court.”

And Higginbotham feels that the whole emphasis on ideology is destructive to the legal system in the long run.

“That is totally destructive to the faith in the judicial system,” Higginbotham said about ideological considerations coming first. “It’s terrible how that has developed. It’s destructive to the long-term fabric of this country. It’s all been turned upside down. In terms of the other judges who have been appointed to the federal judiciary during Trump’s term, there are plenty of judges who were appointed who are deemed absolutely unqualified. But they got it rammed through the Senate anyway. And the minute President Biden wants to appoint a Black woman to the U.S. Supreme Court who would be the first, you see all of the Republicans circling the wagons and deciding, ‘We’re not going to put a Black woman up there.’ I’m like, ‘Excuse me folks, you take a look at that list that the media has been putting out there as the greatest possibilities, every last one of them is highly qualified.’ They are probably great jurists. I don’t read anything that tells me Republicans Senators are even considering that. Senator Lindsey Graham has supported one of them who is from his state. I will give them that. But it is really pathetic. And as a result, I think fewer and fewer people trust the justice system now. And that is a total tragedy for this country.”

And yet Higginbotham holds out some hope and sees some signs that there are still many judges out there who believe in rule of law regardless of ideological considerations.

“That was the concern of many people about these judges and justices, that their appointments were transactional,” Higginbotham said. “It’s nice to know it isn’t necessarily transactional. It still may be to some judges and justices. But like Brian Hagedorn, I don’t believe his decision making is transactional. Now he has nothing to do with Trump. But he is still part of that very conservative Republican group. I’m impressed with some of the justices on the U.S. Supreme Court that Trump put on there, voting in some of the ways that they have. On the abortion in Texas, I am incredibly disappointed. It seems to me they are interested in blowing the whole thing up without serious consideration, speaking outside of what I know. Obviously I am not in the conference room. I’m not sitting with those justices, so I’m not sure about what they are saying and how they are discussing the topic. But a good example is the federal judge in Milwaukee whom Trump appointed. He had one of the challenges to the election before him. And he ruled against Trump. It was one of the rare cases where facts were presented to the court and not based on a procedural concern. They had facts. They had a factual hearing, took legal briefs and made a decision based on the merits and said there was no merit to the challenge to Wisconsin’s election. It was a great decision. I read it. I thought it was well done. And I applaud that judge’s courageousness. The judge did what he was supposed to do based on the law and the facts.”

Higginbotham also had some choice words about the inquiry of former Supreme Court Justice Michael Gableman, which is looking for irregularities in Wisconsin’s 2020 election.

“First and foremost, Michael Gableman, I think he was even unqualified as a Supreme Court justice and ran a very racist campaign against Louis Butler, a dear, close friend,” Higginbotham said. “The way that he is running this ‘investigation,’ this inquiry, is a joke. First of all, there is no basis for it. And so Robin Vos should have never created it in the first instance. And so they are all living The Big Lie. Second of all, Gableman, even when he was on the Wisconsin Supreme Court was a political hack. He’s really showing those colors now. He doesn’t even know what the hell he is doing. This whole investigation, this whole inquiry, needs to shut down and shut down now. It’s going nowhere. It’s a fishing expedition. And I don’t even know what they are trying to fish for because there is nothing there. There are no fish in the pond. And they are saying there is fish in the pond. You look in the pond and you look in the pond and there are no fish in the pond. But Gableman, Robin Vos and the other Republican elected officials in this state think there is a ton of fish in the pond. I don’t know what pond they are looking in, but it’s not the pond many other people are looking into.”

And it is this divisiveness and adherence to another set of facts, no matter their truthfulness, that has Higginbotham concerned for the future of democracy.

“Let’s get back to where there was some common sense,” Higginbotham emphasized. “And even in the times of great political battles, at least there was a common ground, which is there is a basic truth that everyone adheres to and agrees to. And that is the foundation upon which you base the arguments you have. And as I said, reasonable people can disagree. But if that line in terms of what the truth is is constantly changing, then I don’t know how you do your politics. I don’t know how you figure out what the proper actions of government are. If you have people who are saying Trump won, Trump won, Trump won or whatever lie they are putting out there and the facts are clearly opposite of that, I don’t know how we move forward as a country. Therein lies my greatest concern, which is our democracy is beginning to fail because Trump and his followers have now dug the dirt out underneath the foundation of our democracy on purpose in order to have their own way, to have power. It’s going to destroy this country if they are not careful.”