Wisconsin’s Supreme Court Slugfest

A state supreme court race will determine the ideological balance of the court, with ramifications for the next decade.

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Wisconsin Supreme Court justice candidates Janet Protasiewicz and Dan Kelly. (Photos courtesy PBS Wisconsin)

Wisconsin’s April 4 election for a 10-year seat on the state’s supreme court is technically nonpartisan, but from the outside it’s hard to tell. Spending in the race is on track to shatter records, and the two candidates are trading barbs resembling those of any other election.

The race’s intensity comes as the state parties see the court as the referee between the GOP-controlled legislature and the Democratic-controlled governor’s mansion as they debate abortion, crime, and election integrity.

Wisconsin’s Democrats have rallied behind liberal Milwaukee County judge Janet Protasiewicz, while state Republicans have done the same for former state Supreme Court Justice Dan Kelly. Protasiewicz has criticized “rigged” state district maps and gone all in on defending abortion rights. Kelly has accused his opponent of being soft on crime, and, in line with the GOP’s strategy last November, sought to largely duck talking about abortion.

The contest to replace retiring Justice Patience Roggensack will swing the seven-member makeup of the Wisconsin Supreme Court: Conservatives have had the majority for the last decade, but a Protasiewicz win would give liberals a one-seat majority. 

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  1. Avatar photo
    DougAz

    I think this all is just more proof that we should reconsider the entire concept of the Judiciary, lawyers overweight domineering in our democracy.

    They have become defacto dictators in kind, and no longer objective stewards of our democracy.

    The faux judicial philosophy of "Originalism" of Bork, Scalia, Alito, Leo Lenard, Don McGahan, Mitch McConnell is totally debunked and on the garbage heap.

    It's all a corrupt game of personal preferences. It is rot.

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    Jonmckny

    I am a Wisconsin resident that leans right and I can’t bring myself to vote for either candidate. Just like the like the last sentence of Reid’s quote, I can’t stand the vitriol and hyper partisanship.

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    1. Alexander Ioannidis

      Janet is likely to use judicial overreach to undo Scott Walker’s legacy. This is not how a judge should behave. Please consider voting for Kelly, if for nothing else, to stop her

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      1. BadgerBill

        No chance. None. I’ve seen the “non-judicial overreach” conservative justices almost give Trump an absolutely unwarranted win in The Big Lie. Nope. No more.
        And I voted for Walker every time he ran. And for Evers. He’s stood athwart the insane Republican legislature. Nope.

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        Jonmckny

        I don’t think you understood my comment. I will be voting for neither candidate because I believe they are both terrible and detrimental for Wisconsin. I’m not playing lesser of two evils with someone that tried to overthrow a duly elected president.

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        1. BadgerBill

          I respect that choice. A non-vote is a vote. Good for you.

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            Jonmckny

            I just wish there was someone worth voting for.

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    David Hendrickson

    It still boggles my mind that this is an elected office. It's the same here in Minnesota, although practically speaking it doesn't really happen. While I don't like Gov. Evers, I think I'd prefer the justice to be appointed by the governor and approved by the legislature in some way.

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    Ben Connelly

    Good article, Harvest.

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    Ms. SSM

    Kelly lost state wide before Dobbs. I see no path for his victory now. His victory would shock me.

    That said his win would be Catastrophic. 4-3 is an insane result from the Trump lawsuit. It’s Jane’s race to lose but the better be campaigning like she’s down by 10!

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    Pat Riot

    Hopefully Democrats can frame this election as a referendum on abortion and insurrection, and hopefully the people of Wisconsin will choose correctly.

    Once again I would ask people to image what would have happened if Republicans in WI got their way in 2020 and overturned Biden's victory there. It would have just been one state, yes, but still very, very dangerous and it could have triggered another state (say GA or AZ) to also corruptly flip for Trump, causing our Constitutional system of government to come to an end.

    And, of course, based on the precedent set by the last three lying Republican justices who directly lied to the Senate about their intention to overturn RvW, no American can ever possible trust what a Republican judge says before they are seated. Abortion will be illegal in WI if the Republican judge is elected, which is why the abortion abolitionists are pulling out all of the stops to make that happen.

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    1. Kevin Dolan

      Georgia wouldn’t have flipped. Kemp and Raffensberger would have stood firm. Thank goodness for principled Rs. They shouldn’t stand out, but they do.

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        Pat Riot

        Well, you could say Wisconsin would't have flipped either. Republicans have every right to say that their party merely took our country to the edge of ruinous disaster, not actually to it. Only two of the five Republican Supreme Court justices showed themselves to be manifestly corrupt as well. Fair's fair...

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        1. Kevin Dolan

          Yawn

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            Pat Riot

            ???

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  7. Avatar photo
    Graps

    Solid reporting here. Not sure that "down-ballot" races have much of an effect in Wisconsin's spring elections - most of those races are for things like mayor, city council, etc. That's pretty low octane fuel for any base-building fire either side wants to create.

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    CJ

    "In 2020, Wisconsin’s Supreme Court voted 4-3 not to overturn Joe Biden’s narrow victory in the state"

    That right there needs to be more promiently mentioned here because it's a massive problem. 75% of the state's "conservative" justices voted to overturn the election results to sate Trump's ego. Whatever other victories they might offer the Right, they're a threat to the constitutional order and should have resigned in disgrace. They didn't. Which tells you how deep extremism has reached into the Wisconsin GOP and conservative movement.

    Honest conservatives and patriots in WI should vote for Janet Protasiewicz.

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    1. Engage

      I'm not in the "election was stolen" camp, but TDS is so rampant that I'm sure there was more corruption in 2020 compared to past elections. To that end, I won't automatically conclude that 3 of 4 conservative judges voting this way was wrong. Can someone point me to some objective reporting (if it exists) on this case?

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    2. AL22

      So we're stuck between voting between two people we hate.

      "honest conservatives and patriots" have to vote for someone we're ideologically polar opposites with because the right-leaning judges are trump-ish wackjobs.

      I'd rather not vote, but thanks for being the moral authority that decides what determines an "honest conservative and patriot"

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        Scarlette Tarte

        Well, you could not vote. That is a vote as well.

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        CJ

        I've got just as much "moral authority" as you do. We both have our own opinions, and anything anyone says in the comments section here is just an opinion, as I'm sure you understand.

        To me, refusing to vote for a whackjob doesn't go far enough. If it does for you, that's between you and your conscience.

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      Aylene Wright

      Kinda surprised this story really didn't get much national attention at the time!

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    4. BadgerBill

      Amen. As I mentioned below, imagine if Trump could have pointed to “proof” he’d been “cheated. Hagedorn should win the Profiles in Courage award.

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  9. DTruitt

    This is why judges and justices should be appointed, not elected. It is unseemly to have the people who are supposed to represent "blind justice" campaigning like ordinary politicians. They should be insulated from politics as much as possible. Let the politicians appoint the judges and justices, let the politicians do what politicians do, and keep judges and justices out of the greased pig mud wrestling contests that constitute political campaigns.

    Simply making the race officially "non-partisan" of course doesn't work. Wisconsin should amend their constitution.

    Here in Florida, the system works very well. The governor appoints Supreme Court justices out of a pool of candidates approved by the State bar, and they serve a specified term, at the end of which the voters can vote to retain or not retain the justice, but not choose one candidate over another. That provides accountability to the voters without the greased pig wrestling contest.

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      Kyler

      I guess I don’t understand how appointment rather than election of judges insulates judges from the political process. If you look at states in which judges are appointed and compare them to states where judges are elected, the states in which judges are elected rule against the government more often than states in which judges are appointed do. This seems to indicate that judicial elections better maintain the independence of judges from politics.

      While judicial elections can get messy, I’d rather have the messiness that accompanies elections than the favor promising to secure office that goes on behind the scenes at the state bar or governor’s office in appointment systems.

      I personally prefer Illinois’ system. Let the legislature district it up and let slip the partisan judicial elections. Having worked in the Illinois courts, my experience has been that the judges are all competent, thoughtful, and independent legal practitioners . I guess I just trust the people to make better decisions concerning just about anything, including who will serve as their judges, more than I trust a group of lawyers at the state bar or the pols who have the governor’s ear, who generally only represent their own vested interests and will choose their judicial nominees accordingly.

      Before going to Illinois, I was very much opposed to judicial elections. Always interested in being persuaded by counter-perspectives. This is an interesting and important debate.

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      1. Rch22

        It matters when judicial candidates need to raise obscene amounts of money to get elected. How will those contributions affect their rulings?

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          Kyler

          This is certainly the most common argument advanced against judicial elections, and it has some intuitive appeal because it looks like a quid pro quo. That being said, I’ve never seen anything which seems to prove that campaign donations affect the way elected judges rule.

          So the short answer is, campaign donations do not affect judges’ rulings. That makes sense to me because a judge will have many donors. Those donors will often have conflicting interests in any given case. Losing one donor here or there will not sink a judicial re-election campaign. New donors can be found and can be found without making promises.

          What would make the big money in politics is bad argument more persuasive is showing that judges typically rule against their donors less often than in cases in which the parties before them did not contribute to the their election campaigns. Or by showing that judges rule against donors of their opponents’ campaigns more often. If this evidence is out there, I’ve not seen it.

          What evidence there is out there, however, does show that in systems in which judges are appointed, they rule against the government through which they obtained their appointment far less often than judges in elective systems do. So long as that is what the evidence supports, it seems to me judicial elections are the better way of doing things.

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          1. Rch22

            Ideally, we'd have a non-partisan commission (or, if that's impossible these days, a committee comprised of members of both parties) compile a short list of judicial candidates from which a governor could choose. We used to have something like this in Pennsylvania years ago and I'm not sure who thought it was a good idea to amend the constitution to an election system. Both elections (with their campaign donations) and partisan appointments give the appearance of bias that erodes confidence in the judiciary.

            I'm interested in any data you could give me to support your arguments. I don't really like either system but it would be good to know how they compare.

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      2. DTruitt

        How do you NOT see it?

        Not running for office eliminates political campaigning, end of story.

        Being appointed by elected leaders from a pool of qualified candidates selected by the state bar association is the best possible solution, eliminating incompetents and those whose only asset is being politically popular.

        How else are you going to select judges and justices without turning into a political shit show? By randomly pulling names out of a phone book?

        Get real.

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          Kyler

          I don’t see it because it’s not at all obvious. Funny how you don’t actually address my counter-argument about your “pool of qualified judges” not being selected based on their qualifications, but on their favor promising, which is borne out by the numbers showing appointed judges rule against the government through which they are appointed far less often than elected judges rule against the government.

          It’s also telling that you respond with anger, condescension, and caps locks to my very respectful comment soliciting thoughtful counter-arguments. It should be quite clear to all the readers here that I’m not the one in this exchange refusing to see the other side of the argument.

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          1. DTruitt

            It IS most certainly completely obvious to all but the most oblivious of logic.

            The state bar associations are the associations of all attorneys in that state, they know far better than any member of the general public or any politician who is actually qualified to be a jurist at any level. They evaluate candidates, and then produce a list of those who are clearly qualified. No ringers, no amateurs, no weirdos, no criminals, no unacceptable candidates.

            Then the politicians - whether it be a governor as it is in Florida, or some kind of commission with representation from the legislatures - makes a final choice. The politician is thus held accountable by the voters for a bad jurist. The bar association's credibility and prestige is held accountable for their screening of qualified applications. No judge runs a political campaign.

            And, if done as in Florida, every so many years the judge stands for a retention election by the voters. No competitors, no campaigning, a simple "Judge ___ shall be retained in office" with a yes or no on the ballot.

            What is clear is that you don't get it, and you choose not to get it.

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    2. BadgerBill

      I’m an almost lifelong Wisconsin resident. As I’ve mentioned before, the “non-partisan” label for certain offices came about in 1912 when the Democrats and Republicans came together to get “Socialists” as a party off the ballot. (I don’t mean “socialist” as right leaning people want to label Democrats, I mean real, true to life Socialist Party candidates. Milwaukee had a Socialist mayor as recently as 1960).

      “Non-partisan” elections are a grotesque fiction. They’ve always been partisan, nothing is more partisan than an election. By definition, it’s partisan, we’re choosing one candidate over another. What is different this time is the “Democratic” candidate making it explicit she is pro-choice and will protect a woman’s right to choose, albeit without saying how she will rule on specific cases. It’s, frankly, making explicit how she will rule without saying how she will rule. As for the “Republican”, I think you can assume the same thing.
      A few points:
      1). Democrats were not paying attention to the Republican strategy nationally to dominate the judicial branch at the Federal and state level. In Wisconsin, they had a 5-2 majority until recently. We know the lengths Republicans would go to get a SCOTUS majority.
      2). The whole country dodged an huge bullet when Hagedorn voted to uphold Biden’s clear win in Wisconsin. Imagine if Trump actually could point to a Supreme Court in a state questioning Biden’s win.
      3). The real travesty in Wisconsin is the manifest gerrymandering by the Wisconsin legislature. In a state that is as close to 50-50 as can be, the fact the Republicans have an almost veto-proof majority in both houses of the legislature seems suspect. Yeah, yeah, yeah, Democrats do it, too. The point is Republicans are doing it. If you don’t want Democrats to do it, don’t do it yourself.
      4). My Wisconsin spider-sense is telling me the Democratic candidate will win. Easily. Her campaign is almost exclusively focused on abortion rights, which will drive voters concerned a 1849 prohibiting abortion is controlling in Wisconsin.

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      1. Avatar photo
        Scarlette Tarte

        Agree. Have been following with interest. Barring some terrible dark secret popping up, she is in.

        The ladies, and a good deal of the men, are really angry about the abortion ruling.

        I don't get how Republicans don't see that?

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        Ms. SSM

        Based on the primary result I don’t see how she loses. She got more votes then the two conservatives running combined. Abortion drives blue turnout. Kelly has already lost state wide. It would take a miracle to beat her imho.

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        1. BadgerBill

          It’ll depend totally on turnout. The election is, in reality. a referendum on abortion. It is the only issue anyone will care about. Both candidates are attacking each other on how tough they are on crime (like the Wisconsin Supreme Court has anything it can do by any ruling to affect crime), but the abortion ads, pro and con, will follow soon. As I said, my spidey sense says the “Democratic” candidate will win relatively easily. Even my really righty friends are opposed to abortion bans. After 15 weeks, maybe, but not what the 1849 law provides.

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            Scarlette Tarte

            Exactly as I see it. It's not just the Dems who are upset about the Republican party trying to outlaw abortion entirely.

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        Pat Riot

        That's good to hear. As I said in my comment, I am hoping Democrats frame this race as a straightforward referendum on abortion, as it will clearly be made illegal in WI if the Republican wins. Democrats would do well to make people understand what that really means to their personal lives (e.g. no more sex) if the Republican wins here.

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        1. BadgerBill

          Exactly my point, then read yours. Agree totally.

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