March 30, 2023 at 11:44 a.m.
Supreme Court race heads to the finish line
Race is most expensive state Supreme Court election
Former state Supreme Court justice Daniel Kelly and Milwaukee County circuit judge Janet Protasiewicz are heading toward election day in a battle that has now surged past $20 million, easily the most expensive state Supreme Court race ever, with millions of dollars still to go.
The stakes are high. Protasiewicz has attempted to turn the race into an outright referendum on abortion, and Kelly hasn't shied away from the issue, either.
In addition, Protasiewicz's embrace of left-wing policy prescriptions has opened an avenue for Kelly to attack her on the grounds that she's far too radical for Wisconsin - a page out of Sen. Ron Johnson's playbook last fall, when he thrashed then Lt. Gov. Mandela Barnes in vote totals after spending months thrashing him with ads that painted him as a radical.
But Protasiewicz has engaged that battle, too, saying voters have a right to know the political values of candidates and that her values are more in line with most voters than Kelly's are.
As is typical these days, the supposedly nonpartisan race is decidedly partisan, and so partisan issues like abortion and redistricting are on center stage, which have pushed more traditional issues like judicial philosophy and the rule of law to the perimeter, mostly to be used to weaponize the partisan issues.'
Many Democrats think Republicans made a mistake in not seeking compromise on the abortion issue, or in allowing a voter referendum. They believe Protasiewicz has given voters the referendum they wanted.
At every turn, Protasiewicz has a embraced her pro-choice positions, as she did, for instance, in a recent $1-million ad buy.
In one ad, the voiceover says, "A former prosecutor, now Circuit Court Judge, Janet Protasiewicz. On the Supreme Court she'll be a common sense judge. She believes in abortion rights, fairness for all, and protecting public safety. Janet Protasiewicz for Supreme Court."
In the second ad, the voiceover states: "You don't need to know how to say Protasiewicz to know that Judge Janet believes in abortion rights, fairness, and public safety."
In fact, she has been so focused on abortion rights that some of her statements resulted in ethics complaints being filed against her by the Republican Party for allegedly messaging how she would vote on cases that are almost certain to come before her.
She made two comments at a WisPolitcs forum that drew fire from those filing the complaint. One of those statements related to redistricting.
"So let's be clear here, the maps are rigged," Protasiewicz said. "Bottom line. Absolutely, positively rigged. They do not reflect the people in this state. They do not reflect accurately representation in either the state Assembly or the State Senate. They are rigged. Period. I'm coming right out and saying it. I don't think you could sell to any reasonable person that the maps are fair."
The second comment was about abortion.
"I can't tell you where I'll end up on any case. I can tell you a little bit about my values. I assumed I would be asked about that because it's no secret what my values are in regards to Roe v. Wade, in regards to the Dobbs case. My values are that women should be able to make their reproductive life decisions themselves."
Tried and true
For his part, while staying away from such direct statements about abortion, Kelly has been bragging about his pro-life supporters, reinforcing the referendum-like structure of the court campaign. Specifically, he has touted that he is the only candidate for Wisconsin Supreme Court endorsed by all three major pro-life groups in the state.
"Organizations around the state are united in their insistence that the next Supreme Court justice be committed to following the law, not making or changing it," Kelly said, referring to the groups' enthusiastic endorsement, and the groups' leaders were not shy about vocalizing their support for him, either
"Justice Kelly has given us a body of work from his four years on the Wisconsin Supreme Court," Wisconsin Family Action Political Action Committee director Julaine Appling said. "We don't have to guess about whether he will actually do what he has said he will do-uphold the rule of law, a pillar of our form of government. We have votes, and we have written opinions on a host of issues. We aren't relying on campaign rhetoric or 'you-have-my-word' statements during interviews. We have a track record. Justice Kelly has the judicial temperament, experience, and the character that make him the best qualified candidate for this position on our state's Supreme Court."
Likewise, Wisconsin Right To Life Legislative/Political Action Committee director Gracie Skogman said that group was confident Kelly would be a strong defender of the constitution, and would serve the state by enforcing laws, not legislating from the bench.
'Cuse you, 'cuse you back
Each candidate has accused the other side of being radical partisans and each has claimed to be the real nonpartisan in the race.
When Kelly announced his bid, Protasiewicz's staff said the two were like day and night.
"We welcome Dan Kelly to the race to provide a strong contrast with judge Janet Protasiewicz," Alejandro Verdin, Protasiewicz's campaign manager said. "Dan Kelly is a radical right-wing extremist with views about the law far out of the mainstream, and he is running to serve a partisan political agenda rather than provide equal justice under the law."
Protasiewicz was different,Verdin said.
"The people of Wisconsin want someone like judge Janet, who will uphold the law, respect our constitutional rights, act in a nonpartisan and judicious manner, and keep us safe from both crime and extremism."
In an interview earlier this year with The Times, Kelly said the truth is just the opposite and that there would be huge consequences if voters chose her.
"The best way to look at the consequences of the election is to listen what candidate Janet Protasiewicz says," he said. "I have been amazed at how brazen she has been about her promise to disregard our laws."
Kelly said progressives have been outspoken about using the election to transform Wisconsin politically by taking policy desires they couldn't get through the legislature and imposing them through the courts instead, and he said that Protasiewicz actually said in an interview that she would not put her thumb on the judicial scale in the "vast bulk" of cases, which Kelly says means she will do so in some cases.
"[Alexander] Hamilton wrote that liberty can have nothing to fear from the courts if the courts are doing the work of the courts," Kelly observed. "However, Hamilton wrote that if they should combine their power with one of the other branches of government, then liberty would have everything to fear. If we take that construct and lay it over what Janet has been saying, she says in the 'vast bulk' of cases she would not put her thumb on the scale."
We need to grasp what that means, Kelly said.
"You are declaring your independence from the law ... and so she's turning her personal preferences into the law that decides the case," he said. "If you combine the judicial function with the lawmaking function, liberty has everything to fear. So what Janet has been telling us is, if she gets to the Supreme Court, liberty has everything to fear. Those are the stakes."
For her part, Protasiewicz has tried to blunt or soften some of the rhetoric about a radical record by emphasizing her years as tough-on-crime prosecutor. Protasiewicz served as a local assistant district attorney for more than 25 years, both supporting crime victims and prosecuting criminals.
"I've got simple Wisconsin values," Protasiewicz has said. "If you break the law, you should be held accountable. If you work hard and play by the rules, the government should leave you alone. And if your rights are violated, you should get a fair shot to demand justice."
The Milwaukee County judge also stresses her electoral track record, having been elected twice without opposition to the circuit court bench, most recently in 2020. She serves now in Family Court, after spending many years on the criminal court bench, including in overseeing serious felonies such as homicides and sexual assaults, misdemeanor, domestic violence cases, and in drug court.
"I've spent more than 35 years in the law, defending the rights of victims, protecting children, and upholding the law, and I see our criminal and civil justice system under attack by radical partisanship," she said. "Our system works because the law is predictable. You can read the constitution, the statutes, and case law, and know what to expect, but as we can see on an almost-daily basis, our most closely-held constitutional rights are under attack by radical right-wing extremists."
And Kelly, Protasiewicz says, is one of those extremists, circling back to abortion to make her point.
"For almost my entire life, the constitutional right to privacy has been settled law," she said. "We know that it's not up to the government to decide who we can or can't love. We know the 2020 election resulted in Joe Biden's election. We must restore confidence that judges aren't just trying to reach their favored outcomes, but actually applying the law and the constitution. I'm running to restore integrity to the Wisconsin Supreme Court, and get politics out of the courtroom."
Curbing the bureaucracy
For his part, Kelly says he is running not only because he wants the legislature and not the courts to legislate, but because he also wants to curb the bureaucracies that he says has usurped too much power.
He points to four decisions that he was part of on the state Supreme Court, decisions he says confronted government overreach.
In voting with the majority to overturn the Evers' administration's "Safer At Home" order, Kelly said he helped restore individual liberties and the end of the forced government shutdown.
In McAdams v Marquette University, too, Kelly ruled that the university, by suspending the professor for conservative speech, was in breach of contract. McAdams won and Kelly says the result was the protection of First Amendment rights and academic freedom.
In the case of Wisconsin Carry v. City of Madison, Kelly ruled that the city of Madison's attempt to limit concealed carry rights violated state statutes-a direct protection of Second Amendment Rights, he said, and, in one of the more important decision during his tenure on the bench, in Tetra Tech v. Department of Revenue, Kelly and the majority ruled that the court will not defer to an administrative agency's interpretation of laws. As a result, he says, unelected bureaucrats in Madison were prevented from exercising power that did not belong to them.
In the end, Kelly says he will work hard to preserve the rule of law and the constitution.
"I am incredibly grateful to those all over the state who have encouraged me to run," he said when he announced. "They know the importance of electing a justice with a track record of protecting our Constitution, faithfully applying the law as written, and respecting the people of Wisconsin as his bosses."
During his term on the court, Kelly said he dutifully resolved Wisconsinites' disputes according to the law with neither fear nor favor for any party or position, and he warned of the stakes for this election.
"If an activist were to win next April, Wisconsin's public policy would be imposed by four lawyers sitting in Madison instead of being adopted through our constitutional processes," he said "I won't let that happen on my watch."
For her part, Protasiewicz has called Kelly one of the most "extremely partisan candidates" in the history of the state.
"He is a true threat to our democracy," she said in their only debate.
Protasiewicz also defends being able to state her values without compromising her ability to judge each case before her. Indeed, the circuit judge says she believes candidates have a duty to tell voters their values.
"I can't tell you how I'll hold in any case, but throughout this race, I've been absolutely clear about what my values are," Protasiewicz said when she finished first in the February primary. "That's because I believe the voters of this state deserve to know what a candidate's values are. I value a woman's freedom to make her own reproductive health care decisions. I value our democracy and I believe that every Wisconsinite deserves to be fairly represented. Your vote matters, everybody's vote matters, and the constitution, our constitution, guarantees the right to vote and to have a representative democracy in this country. I value public safety and I believe that everybody deserves to live in a safe community. We need to uphold our laws, protect the rights of victims and hold offenders accountable. These are not partisan values, it's common sense."
Richard Moore is the author of "Dark State" and may be reached at richardd3d.substack.com.
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