The Washington PostDemocracy Dies in Darkness

Opinion Wisconsin Supreme Court race shows folly of electing judges

Wisconsin Supreme Court candidates Republican-backed Dan Kelly and Democratic-supported Janet Protasiewicz participate in a debate on March 21 in Madison, Wis. (Morry Gash/AP)
5 min

A Wisconsin Supreme Court election on Tuesday is this year’s most significant political contest in a presidential battleground state, with enormous implications for abortion rights, redistricting and union organizing. Conservatives have controlled the state’s highest court for 15 years, but liberals have the chance to win a 4-3 majority. It’s no surprise that this has become the costliest judicial election in U.S. history, with more than $30 million spent.

The campaign, nonpartisan in name only, has become an unseemly spectacle that underscores why judgeships should never be on the ballot. A liberal Milwaukee County circuit judge, Janet Protasiewicz, faces a conservative former state Supreme Court justice, Daniel Kelly, who lost in 2020. The two refused to shake hands last week at their only debate.

Judge Protasiewicz describes herself as pro-choice, calls the state legislative maps “rigged” and signals openness to striking down Act 10, which rolled back collective bargaining for public employees. Before joining the bench in 2014, she protested against that law and signed the petition to recall then-Gov. Scott Walker (R). “Precedent changes,” she said during the debate.

Mr. Kelly was president of the Milwaukee chapter of the Federalist Society when Mr. Walker appointed him to a fill a vacancy in 2016. The Republican Party of Wisconsin and the Republican National Committee have paid him $120,000 for legal advice since he was defeated in his 2020 bid for a full 10-year term. Furthermore, a former Wisconsin GOP chairman told the House Jan. 6 committee that he had “pretty extensive conversations” with Mr. Kelly and other lawyers about sending fake electors to Washington. (Mr. Kelly says he had one 30-minute conversation and wasn’t really in the loop.)

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The big issue in this election has been Wisconsin’s 1849 abortion ban, which went back into effect last summer after the Supreme Court’s Dobbs decision. Susan B. Anthony List, Pro-Life Wisconsin and Wisconsin Family Action support Mr. Kelly. So does Wisconsin Right to Life, for whom for whom he has provided legal counsel. Planned Parenthood and Emily’s List endorse Judge Protasiewicz. “If my opponent is elected, I can tell you with 100 percent certainty that (the) 1849 abortion ban will stay on the books,” she has said.

Mr. Kelly tries to maintain the pretense that he hasn’t prejudged issues coming to the court, but he has previously written that abortion is “a policy deadly to children,” and he spoke virtually at an event this month that featured a pastor who has advocated for creating an antiabortion militia and has called the murder of abortion providers “justifiable homicide.” Mr. Kelly said afterward that he does not condone violence.

Mr. Kelly also tweeted a video last week with Scott Presler, who planned “Stop the Steal” rallies and was at the U.S. Capitol during the insurrection on Jan. 6, 2021. Mr. Presler is driving around the state stumping for Mr. Kelly, who describes his support as “invaluable.”

Whoever wins Tuesday could play a decisive role in adjudicating disputes about future elections. Four of the past six presidential elections in Wisconsin were decided by less than 1 percentage point. Mr. Trump carried the state by 22,748 votes in 2016 and lost it by 20,682 in 2020.

Three of the four conservatives on the Wisconsin Supreme Court expressed openness to Mr. Trump’s baseless litigation in 2020 to overturn his defeat by throwing out ballots from Democratic counties. It didn’t happen only because the fourth, Justice Brian Hagedorn, resisted pressure to buckle.

Wisconsin also has the most extreme partisan gerrymandering in the United States. On a party-line vote, the state Supreme Court sided last year with Republicans in the legislature over the Democratic governor, even though the law says he’s supposed to have a say in the redistricting process. While Wisconsin is closely divided in statewide elections, the GOP has drawn lines to almost guarantee something close to supermajorities in both chambers.

The Wisconsin Democratic Party, which received a recent $1 million boost from George Soros, has transferred $8 million to Judge Protasiewicz’s campaign. Julia Louis-Dreyfus and Hillary Clinton have urged fans to donate. An outside group bankrolled by climate activist Tom Steyer is contacting thousands of young Wisconsinites on apps like Tinder, Hinge and Bumble in support of the liberal judge.

Mr. Kelly ran his 2020 campaign from the state GOP headquarters. The Republican State Leadership Committee is pouring in money through its so-called Judicial Fairness Initiative. GOP megadonor Richard Uihlein, heir to the Schlitz beer fortune, is funding a super PAC that’s spent $5 million to help Mr. Kelly.

Jennifer Rubin: Wisconsin’s Supreme Court primary signals Democrats’ strength

Sadly, this is a national problem: Thirty-nine states choose judges at some level through elections. Nearly $100 million was spent on judicial races during the 2020 cycle, according to the Brennan Center.

This Editorial Board has argued for decades against the perverse practice of electing judges. Studies show judges hand out longer sentences as elections approach because they don’t want to be attacked as “soft on crime” and that they are more likely to rule in favor of their donors during election years.

A jurist’s job is to fairly apply the law, not to serve an ideology or donors. Governors should appoint justices, and legislatures should confirm them. That process ought to be transparent, consultative and merit-based.

No matter who wins in Wisconsin on Tuesday, the rule of law will lose.

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Editorials represent the views of The Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Opinion Editor David Shipley; Deputy Opinion Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (national politics and policy); Lee Hockstader (European affairs, based in Paris); David E. Hoffman (global public health); James Hohmann (domestic policy and electoral politics, including the White House, Congress and governors); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; Mili Mitra (public policy solutions and audience development); Keith B. Richburg (foreign affairs); and Molly Roberts (technology and society).