A Requiem For the Independent Judiciary
The dark side of Wisconsin's high stakes judicial election
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. — Alexander Hamilton, Federalist 78
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A few BFD’s to keep an eye on today:
The Wapo: “Trump lawyer must turn over evidence on classified documents, court rules.”
Amanda Carpenter: “Why Trump’s Hush Money Matters.”
DeSantis wants a mulligan on Ukraine. NYT: “DeSantis Calls Putin a ‘War Criminal,’ Clarifying Earlier Comment on Ukraine”
But let’s get back to Hamilton, and what’s happening in my home state.
As you may have heard by now, in Wisconsin supreme court justices are neither appointed nor have lifetime tenure. We elect them, which increasingly seems like a very, very bad idea.
Hamilton emphasized the importance of the “independent spirit” of the judiciary in safeguarding the Constitution and the Republic, but as the most expensive, partisan (and incredibly bitter) judicial campaign in history goes into its final days, there is little of that independence in evidence.
Perhaps we ought to be concerned about that.
Let me stipulate that no one seems to care about this, because the stakes right now are so high in what has been described as “the most important election in America this year.”
Politico described it as “The most important election nobody’s ever heard of.”
The Wapo’s Greg Sargent called it the “sleeper race that could wreck MAGA’s 2024 dreams.”
The New York Times declared that the election “carries bigger policy stakes than any other contest in America in 2023.”
Here’s the Guardian: “‘Stakes are monstrous’: Wisconsin judicial race is 2023’s key election.”
None of this is hype.
With the state’s political establishment gridlocked (a Republican legislature and Democratic governor) the focus of nearly every major issue — from abortion to redistricting to voting rights and the 2024 election — now turns to the narrowly divided high court.
And everybody understands that, including the candidates who have made it clear how they would rule on a host of hot button issues that are likely to come before the court.
Technically the race is “non-partisan,” but the contest between conservative Dan Kelly and liberal Janet Protasiewicz (pronounced “pro-tuh-SAY-witz”) is anything but non-partisan. Both parties have fully mobilized. Outside money is pouring in.
Just yesterday, I got a fundraising mailing from Senator Ron Johnson, declaring this “the most important Wisconsin Supreme Court race in history.”
“Liberals are desperate to ‘flip’ the court,” Johnson wrote, urging me to write a check to Dan Kelly for $50, $100, $250, $500, $1,000, $2500, or more. “This is the moment of truth.”
Democrats are equally engaged. The chairman of the state Democratic Party, Ben Wikler, warns that the race “has implications that will affect national politics for years to come, really at every level of government.”
There is nothing subtle about any of this.
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In particular, there is nothing subtle about the partisan allegiances. State Democrats have transferred millions of dollars to Protasiewicz’s campaign. But that pales next to Kelly’s entanglement. Via the Milwaukee Journal-Sentinel: “Supreme Court candidate Daniel Kelly was paid $120,000 by Republicans to work on 'election integrity,' advise on fake electors.”
Former state Supreme Court Justice Daniel Kelly — who has been critical of his opponents for their partisanship — has been paid nearly $120,000 by the state Republican Party and the Republican National Committee over the past two years for his work on election issues.
In that role, Kelly was at the center of the discussion in December 2020 with top Wisconsin Republicans over their highly controversial plan to covertly convene a group of Republicans inside the state Capitol in the weeks following Donald Trump’s loss to Joe Biden to sign paperwork falsely claiming to be electors.
Former state Republican Party Chairman Andrew Hitt said in a deposition last year to the U.S. House committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol that he and Kelly had "pretty extensive conversations" about the fake elector scheme. Kelly was serving as the party's "special counsel" at the time.
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So far the race has been dominated by abortion. Wisconsin has an 1849 law on the books that bans nearly all abortions.
Kelley, who has the endorsement of all of the state’s right to life groups, insists that he has not prejudged the case.
But no one, and I mean literally no one, has any doubt that he would vote to uphold the law.
Nor does anyone have any doubt that Protasiewicz, who proclaims herself a “progressive,” would vote to overturn it. So, since the court now has a narrow 4-3 conservative majority, her election would effectively decide the issue.
The election might also decide the fate of the state’s gerrymandered legislative and congressional districts. At a candidate forum in January, Protasiewicz signaled how she would rule:
So let’s be clear here, the maps are rigged. 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.
This week, she suggested that she might also rule against Act 10, which restricted the collective bargaining rights of public employees, and that she would reverse the court’s previous rulings on voting policies like the use of drop boxes.
Her comments drew an ethics complaint from state Republicans, who accused her of prejudging cases. But Kelly is hardly less subtle. Bill Lueders reported in the Bulwark:
In 2012, before Walker appointed him to the court, Kelly was hired by Republican lawmakers to defend the redistricting plan that they had hashed out to maximize their political advantage. At a candidate forum in Madison last month, he gave his stamp of approval to the manipulation of political boundaries for political ends, saying: “A redistricting map is an entirely political act. It involves political calculation. It involves communities of interest. It involves give and take. It involves compromise. It involves the political process. It is political, from start to end.”
While he frequently talks about the “rule of law,” Kelly has leaned heavily on his right-wing ideological credentials.
In writings submitted to Walker in seeking appointment to the court, Kelly likened affirmative action to slavery, saying they “both spring from the same taproot,” and said allowing same-sex couples to wed, which the U.S. Supreme Court had not yet done, “will eventually rob the institution of marriage of any discernible meaning.” In blog posts he wrote between 2012 and 2015, Kelly described abortion as “a policy that has as its primary purpose harming children.” And he decried the 2012 re-election of President Barack Obama as a victory for “socialism[,] same-sex marriage, recreational marijuana, and tax increases.”
And there’s nothing subtle about this, either: “Dan Kelly appears at event headlined by pastor who advocated for killing abortion providers, compared COVID-19 policies to Holocaust.”
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The race has also shaped up to be a crucial test for election denialism.
After Donald Trump narrowly lost Wisconsin in 2020, the state’s Supreme Court came perilously close to becoming the only court in the nation to side with Trump’s legal challenge of the results. The vote was 4-3, with one conservative, Brian Hagedorn, joining the court’s three liberals. He wrote for the majority that the Trump campaign had “waited until after the election to raise selective challenges that could have been raised long before the election.” It was a by-the-book call for which he drew outrage.
“You are an absolute disgrace and we the people of Wisconsin are completely embarrassed to have you on the court,” said one caller to his office line. “I will actively campaign against you and your next election, hoping to make you a one-term justice,” said another. Wisconsin Supreme Court justices serve ten-year terms. Hagedorn is not up for re-election until 2029.
Kelly has been vocally critical of Hagedorn, has apologized for supporting him, and made it clear that he would show no similar flashes of judicial independence.
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Which brings us back to Hamilton.
In Federalist 78, Hamilton warned that the judiciary has “neither FORCE nor WILL, but merely judgment,” and that ―”[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
This, argued Hamilton, is why judicial independence was so important. It was one of the “bulwarks of a limited Constitution against legislative encroachments.”
But judicial independence is also essential for the legitimacy of the courts and the rule of law.
If judges are merely partisan legislators then what, really, does the “rule of law” mean? If the law changes with every election, is it really the law, or simply politics by other means?
Why should the courts and their rulings deserve any more respect or deference than the utterings of any other hack politician who holds temporary office?
So while turning the courts into partisan weapons may have its appeal, the politicization of the judiciary also carries long term dangers, as we are about to discover when the former president escalates his attacks on the independence of the juries, judges, and prosecutors.
On the pod
ICYMI: Lively conversation with Michael Steele on the way Trump framed the narrative about the Manhattan grand jury case on his terms. Plus, the white boy frat party atmosphere at the Tucker Carlson show.
You can listen to the whole thing here.
Quick Hits
Jim Jordan’s Bogus Justification for Attacking the Manhattan D.A.
Congress has no constitutional authority over, or legitimate investigative interest in, the (still only hypothetical) indictment of Donald Trump. Kim Wehle in today’s Bulwark:
The Supreme Court has written that “perhaps the clearest example” of the traditional state police power “is the punishment of local criminal activity.” As freshman Rep. Daniel Goldman (D-N.Y.) promptly noted in a tweet, Congress has no legitimate federal interest in how the Manhattan D.A. runs its shop. That’s up to Manhattan voters and the other branches of local government. As put by a federal district court judge in another context, therefore, “this type of insertion into local criminal matters would intrude more deeply into traditional state authority than a mere attempt by Congress to separately criminalize a local crime.” And even for that, Congress would need a reason to believe that activity in a city or state substantially affects interstate commerce under Article I’s Commerce Clause.
Cheap Shots
Irony is ded.
“If judges are merely partisan legislators then what, really, does the “rule of law” mean? If the law changes with every election, is it really the law, or simply politics by other means?
Why should the courts and their rulings deserve any more respect or deference than the utterings of any other hack politician who holds temporary office?”
This is a terrifically concise and insightful encapsulation of one of the most damaging blows that Trump (aided by McConnell and many others) has inflicted on our Republic. He has put the lie to the whole (perhaps already suspect) idea of an independent judiciary. I don’t know how “The Judiciary” ever really recovers from this -- and what this means for the prospects of our Constitutional order itself.
Damn, my respect for Dan Goldman grows every week!