By Steve Schuster and Ethan Duran
Wisconsin has once again very quickly advanced to the center of the national political stage with all eyes on the April 4 election for Wisconsin Supreme Court justices.
It’s no secret that the outcome of Wisconsin’s April Supreme Court election will have widespread national implications. Wisconsinites are anticipating that the state Supreme Court justices will be faced with decisions that will have a profound impact extending well beyond Wisconsin’s borders, especially given the fact that Wisconsin will once again be a battleground state for the 2024 presidential election. The opening 2024 Republican presidential debate will be hosted in Milwaukee in August, the Republican National Committee announced on Feb. 23. Suffice it to say, both candidates agree that the open swing seat on Wisconsin’s highest court is valuable real estate.
“The winner will determine the balance of the court,” said Milwaukee County Circuit Judge Janet Protasiewicz, who is running for the swing state Supreme Court seat.
The issues that are expected to face the Wisconsin Supreme Court include many aspects of Democracy, including voter rights. Abortion, education and the environment are also topics expected to be addressed by the court. Those who support liberal and right-wing candidates have been raising concerns over the erosion of our Democracy.
Eric Toney, Fond Du Lac County district attorney and president of the Wisconsin District Attorney’s Association, said he is concerned that a left-leaning candidate would not preserve the rule of law and would let personal biases influence decisions for the rest of the state.
“We want judges that will make decisions based on the law and the facts, not their own personal values,” said Toney said during an interview with the Wisconsin Law Journal.
Toney referenced the interview with Capital City Sunday in which Protasiewicz said in the bulk of cases her thumb wouldn’t be on the scales of justice.
Kelly agreed and explained how in his mind, his views differ from that of his opponent.
“The key to the rule of law is that we all know what is required for us, this is why the Legislature develops the law. The rule of Janet means you’ll never know what the standard is. You can only know in in hindsight,” Kelly said.
“If someone like Janet gets on the Supreme Court and starts substituting her personal will for that of the constitution, the constitution falls,” Kelly added. “… If Janet puts herself above that then all of the liberties that our constitution protects are all at risk, and I’m talking about fundamental things like speech, press, religion and the right to keep and bear arms, the right to hunt and fish and on and on down the line … then what you get is whatever Janet is allowing you to have. … What we are facing is the question whether the court is going to continue to be a court. Or if it instead will be an instrument by which a couple of lawyers in a Madison courtroom will dictate policy to all of Wisconsin.
“… This is going to be an election like no other because my opponent is a candidate like no other. She has made it clear if she makes it to the Supreme Court she is going to set herself above the law. What we will have is not the rule of law, but the rule of Janet. She’s even promised to put her thumb on the scales of justice to make sure they are decided in ways she personally approved,” Kelly added.
However, Protasiewicz says liberals are capable making decisions based on the law and facts and went one step further, saying that she would treat litigants as equals.
“People want an independent Supreme Court where everyone will follow the law. When litigants come into chambers, they will all be treated the same,” she said.
Protasiewicz and other Liberal public policy experts have voiced concern over alleged voter suppression taking place in Wisconsin through the alleged gerrymandering of political maps and voter ID laws.
Protasiewicz went as far as calling the system “rigged.”
Johns Hopkins Political Science Professor Matthew Crenson agreed with Protasiewicz.
During an interview with the Wisconsin Law Journal, Crenson said that he has been following Wisconsin legal news and that he was shocked by the voter ID laws and gerrymandering of maps in the state during recent times.
“Wisconsin used to be known as one of the most progressive states in our nation,” Crenson said. “I would have expected this (voter suppression tactics) from places like Mississippi and Alabama, but never in a place like Wisconsin. Wisconsin is deeply rooted with strong academic institutions that don’t exist in other states. Yet, the Wisconsin Legislature has taken steps to restrict voting. Clearly the Republicans in Wisconsin have tried to seize control to grasp at whatever they can. But make no mistake, the future doesn’t look bright for future Republicans. Wisconsin’s right-wing had better be careful. If they push things too far the state’s Democrats will mobilize and reset the balance in the state.”
“(Protasiewicz) personally disapproves of (state political maps) and therefore she wants to change them. It’s not a question of whether they violate any specific legal standard. It’s a question for (Protasiewicz) whether they are personally offensive to her standards,” Kelly said.
Republican Wisconsin Senator Andre Jacque said the issues Protasiewicz raised are non-issues for both Democrats and Republicans.
“Voter ID is supported by the bipartisan majority. It hasn’t been an issue at any polling place that I’m aware of here in Wisconsin and something that I’ve found broad support for among my constituents of all political ideologies, especially given there are so many examples in society where having valid ID is necessary for exercise of other rights,” Jacque said.
As far as the gerrymandering allegations, Jacque said Democrats have been posturing to gerrymandering in favor of liberals in anticipation of a Supreme Court seat win.
“One thing I have heard from various Democrat colleagues is that they have already redrawn the state legislative branch in anticipation of retaking the control of the state Supreme Court,” Jacque said.
“I think what we’ve heard from Democratic party is generally that they would like to gerrymander districts in a way that discount the traditional core criteria equal population … because of the existing concentration of democratic voters in Wisconsin’s urban centers, the only way for Democrats to accomplish their redistricting goals would be through an extreme partisan gerrymander with tentacles running from Madison and Milwaukee,” Jacque added.
Still, Protasiewicz contends that current political lines are drawn in favorable ways to Republicans, going as far as to once again call them “rigged and unfair.” She says this is direct threat to voters’ rights and our Democracy.
“If you look at the fact that Wisconsin has all of these close elections, it is clear that Wisconsin is a battle ground state. And if you look at the division in state Legislature, you know people aren’t being fairly represented. Maps should be fairly represented. This is the absolute at heart of our Democracy,” Protasiewicz said.
Protasiewicz sees the April election as an opportunity to protect Democracy across the state.
“We have the opportunity to bring normal back and get away from the extremists,” Protasiewicz said.
“What (Protasiewicz) is trying to teach people is there is no such thing as justice. What she is trying to teach people is there is only power. She wants to exercise (this power) according to her own likes and no others. There will be no justice to be found on which a court justice Protasiewicz sits. Because justice requires you follow the law, not your personal values,” Kelly said.
“We are trying to have an election here for a Supreme Court justice, but she insists on being a legislator in a black robe,” Kelly added.
Recently, Protasiewicz had substantial donations moved to her campaign war chest. As of Feb. 24, Protasiewicz had more than $2.1 million in donations, according to Follow The Money.
Also as of Feb. 24, Kelly had more than $400,000 in donations, according to Follow The Money.
Kelly received donations, including from Elizabeth and Richard “Dick” Uihlein of shipping supply company Uline. Count Diane Hendricks and her daughter, Kim, of roofing supply firm ABC Supply among his top donors. Kelly reported he raised $130,000 before the February election.
Kelly also received significant out-of-state donations, including $20,000 from Northern Virginia attorney Leo Leonard, who served as past vice president of the Federalist Society and was instrumental in the overturning of Roe v. Wade.
But Kelly contends that won’t influence his decisions on the bench, only the rule of law will.
“I want everyone in Wisconsin to hear me talk about how I will protect the constitution and why that is so critical to protecting our liberties. … Everybody who contributes to my campaigns has political views — every single last one of them. Do you know what I do with those political views? I ignore them all,” Kelly said.
Kelly was appointed to the Wisconsin Supreme Court in 2016 by former Republican Gov. Scott Walker, who was known for his collective bargaining bill Act 10, which ultimately resulted in a big reduction in power and membership by unions. When asked about Act 10 and his views on unions, Kelly said, “My views on that are about as irrelevant to work of the court as my favorite Italian dish, and by the way my favorite Italian dish is my wife’s lasagna. If that ever becomes relevant, we can start talking about my view of unions and Act 10.”
Both Protasiewicz and Kelly have a long list of endorsements.
Democrat Supreme Court Justice Rebecca Dallet and state Sen. Kelda Roys are among Protasiewicz’s endorsers.
“(Protasiewicz) is the best candidate for the job,” Roys said. “I think she really understands when the public loses faith in the Supreme Court it’s really devastating for democracy. Every single person who talks into a court room should feel at the end of the day they got a fair shake. … And only then can they accept the outcome. Unfortunately, that is not the case with our current supreme court.”
Citing the nearly three decades of experience as a career prosecutor that Protasiewicz brings to the table, Roys added that, “It is really important know the law, be ethical and care about a fair and functioning criminal justice system,” she said.
When the 2020 presidential election case was before the Wisconsin Supreme Court, “We were one vote away from losing our Democracy. That is absolutely terrifying. Dan Kelly is an election denier who got paid off by the Republican party … who has been centrally tied up by these MAGA efforts to undermine our Democracy. This is a huge concern not to just Democrats but to all Wisconsinites who want our votes to be counted fairly,” Roys said.
Dallet agrees with Roys that many eyes will be on April’s outcome.
“There is a lot at stake and we have an opportunity to make sure that the courts upload the law and respect our constitutional freedoms,” Dallet said.
Dallet said she is confident that Protasiewicz has both the depth and breadth of experience. Dallet also brought up the Trump v. Biden case that was brought before the highest Court in Wisconsin.
“There were individuals who wanted to throw out votes in Dane (County) and Milwaukee and those just happened to be where Joe Biden won. (The Wisconsin Supreme Court) was the only court to hold a hearing. A 4-3 razor-thin majority decided the outcome of that case. We can’t risk that again. We can’t risk any further erosion of the rule of law or our democracy,” Dallet said.
Kelly also has Wisconsin Supreme Court justices who endorse him.
Count Justice Rebecca Bradley among those who endorse Kelly.
“Having worked with Justice Daniel Kelly on the Wisconsin Supreme Court for four years I know he will faithfully uphold the Constitution and apply the law as it is written,” Bradley said. “With Justice Patience Roggensack’s retirement, we will lose her civil law background and expertise. Diversity of legal experience is critical on any supreme court. Before his judicial service, Justice Kelly dedicated most of his 25-year legal career to civil and constitutional law. His intellect, breadth of knowledge and commitment to the law are simply unmatched.
“In stark contrast, Justice Kelly’s opponent is politicizing the judiciary, signaling she will overturn precedent she doesn’t like and replace it with her vision of what the law should be,” Bradley added. “Anyone who values the rule of law should recoil from the idea of judges deciding cases in accordance with their personal policy preferences rather than the law. Lawyers and their clients expect and deserve to have stability and predictability in the law and should not be subjected to the whims of judicial activists like Janet Protasiewicz. Justice Kelly is the only candidate we can trust to remain faithful to the judicial oath.”
Kelly also has the support of a number of Wisconsin law enforcement agencies, including many county sheriffs.
Washington County Sheriff Martin Schulteis said he endorsed Kelly for his qualifications and his record of “soundly applying the law to cases brought in front of him.”
“I am concerned with judicial candidates who announce personal opinions on both political and social issues to garner votes rather than embrace the judicial responsibility to interpret laws and apply justice based upon the Constitution,” Schulteis said.
The sheriff said his endorsement would have an impact on the tightly contested race because voters use them when they decide at the polls.
“What I can tell you is I, like many sheriffs, do not take endorsing any candidate lightly,” Schulteis said.
Wisconsin Court of Appeals Judge Shelley Grogan also endorsed Kelly.
“The judicial branch had become politicized over the past several years and every voter should want a justice committed to the Constitution and applying the rule of law,” Grogan said. “We need to elect justices who will decide cases based on the law and not put their thumb on the scales of justice to suit their personal politics or preferences. Justice Kelly is the only candidate who is committed to deciding cases based on law.”
Grogan served on the Wisconsin Supreme Court from 2015 to 2021 and worked with Kelly for four years. She said she saw his commitment to the law and the “proper role of a justice.”
“He is a constitutional scholar and has qualifications such that he could serve on the United States Supreme Court,” she said. “We are very fortunate to have such an exceptional candidate interested in serving us here in Wisconsin,” Grogan said.