A Stark Judicial Choice in Wisconsin

Liberals get the conservative they wanted.

Wisconsin State Supreme Court courtroom in the Wisconsin State Capitol (Photo credit: Nagel Photography / Shutterstock)

Democrats got exactly what they wanted in Wisconsin last night.

NBC’s headline this morning: “Trump ally with ties to 'fake elector' scheme advances in Wisconsin Supreme Court race.”

Technically, of course, the race for state Supreme Court is “nonpartisan,” but the reality is quite different. The high-stakes race for a swing seat on the court this year has stripped away any lingering pretense that the campaign is anything but a straight-up red-blue partisan brawl. As the Milwaukee Journal-Sentinel noted yesterday, it is “a race unmatched in its consequence to policy in this battleground state, where conservatives and liberals are expected to raise and spend levels of cash not seen before in a judicial race.”

Last night, as expected, one of two progressive candidates, Janet Protasiewicz, topped the field — as the two liberals in the race garnered around 54 percent of the total vote — an impressive showing in a closely divided state. Turnout was huge, far surpassing previous records.

Progressives also got the conservative they very much wanted, setting up a stark ideological clash in the April general election.

Former Supreme Court Justice Dan Kelly edged out Waukesha Judge Jennifer Dorow for the second spot on the April ballot. Many Republicans thought that Dorow — who had won plaudits for her handling of a high-profile murder trial— was a more electable candidate than Kelly. Democrats apparently thought so too; so she was hammered from both the right and the left, clearing the field for Kelly. (Protasiewicz won about 46 percent of the vote, Kelly had 24 percent and Dorow had 22 percent.)

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Why are the Dems so jiggy about Kelly’s win?

Here’s the last time Kelly was on the ballot for Supreme Court. In Wisconsin, incumbent justices almost never lose. But Kelly did. Badly.

Then there is this… (via the Journal-Sentinel):

Former state Supreme Court Justice Daniel Kelly… 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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Expect to hear a lot more about that… along with debates about abortion, and gerrymandering. But, as Bill Lueders wrote here, the race has also shaped up to be a crucial test for voting rights and 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.

And Kelly could be the deciding vote in cases involving the next presidential election.

Last July, Hagedorn was back on board, joining his fellow conservatives in disallowing the use of absentee ballot boxes and barring anyone from helping deliver another person’s absentee ballot—both fixes to nonexistent problems flagged by Republicans.

Will Hagedorn buck his fellow conservatives again next time, or will he join the majority in winking at GOP efforts to manipulate the election apparatus and subvert the election results? And what if Wisconsin were the state, or one of them, on which the race for president turned? That’s where “the future of American democracy” concern comes from. But even if all it does is decide the future of reproductive rights and democratic ideals in Wisconsin, this Supreme Court race is of huge significance. Ben Wikler, chair of the Democratic Party of Wisconsin, calls it “the most important race in the country before the 2024 presidential race.”

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This is not to suggest that Protasiewicz does not have her own challenges. She has been criticized for appearing to pre-judge major cases that will come before the court, and will face attacks for giving convicted felons probation rather than prison terms recommended by prosecutors.

In a normal year, this would be problematic. But this is not a normal year or a normal election cycle. And then there is Kelly’s own record. Wrote Lueders:

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.”

Last night, as he claimed victory, Kelly took aim at his liberal opponent.

“Janet Protasiewicz’s promise to set aside our law and our Constitution whenever they conflict with her personal values cannot be allowed to stand,” he said. “Never before has a judicial candidate openly campaigned on the specific intent to set herself above the law, to put her thumb on the scales of justice to ensure the results satisfy her personal interests rather than the commands of the law. … If we do not resist this assault on our Constitution and our liberties, we will lose the rule of law and find ourselves saddled with the rule of Janet.”

But, of course, Kelly has also signaled how he would rule on a host of hot-button issues, including the state’s nineteenth-century ban on abortion, which is now very much on the ballot.

The general election is April 4.

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ICYMI: The QAnon Nightmare

On Tuesday’s podcast, I talked with Will Sommer, whose new book, Trust the Plan: The Rise of QAnon and the Conspiracy Theory That Unhinged America, was published yesterday.

You can listen to the whole mind-blowing thing here:

And a BONUS:

For Bulwark+ members, our weekly Just Between Us podcast looked at Biden’s Kyiv visit; Ron DeSantis’s foray into foreign policy, the Fox News document dump, “national divorce,” and sanitizing Roald Dahl.

Here’s how you can add the podcasts to your podcast player…

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Quick Hits

1. Year One of the Ukraine War: The Big Lessons and Questions

Cathy Young in today’s Bulwark:

The world’s liberal democracies seem to have finally gotten over their reluctance to supply Ukraine with weapons that will enable it to mount a full-scale offensive. Right now, Russia’s ability to push back against such an offensive looks shaky at best, and Ukraine’s ability to accomplish its goal of liberating all of its territory and restoring its pre-2014 borders looks increasingly realistic.

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2. Jimmy Carter’s Legacy

Mona Charen writes that Carter sometimes let self-righteous moralizing get in the way of morality.

While it’s admirable that Carter so clearly wants to do good work in the world (and often succeeds), it is also undeniable that he has demonstrated a do-gooder naivete that does not reflect well on him. In 1994, before traveling to North Korea on Bill Clinton’s behalf, he rebuked his briefers. “You haven’t told me what Kim Il Sung wants. What he wants is my respect. And I am going to give it to him.” How did that work out? He later opposed leveling sanctions on North Korea on the grounds that it risked war, adding that North Korean people “could not accept the branding . . . of their revered, almost worshipped, president as a criminal.” Did he really imagine that the North Korean people would have any say in the matter? Similarly, he recounted a conversation with Soviet foreign minister Andrei Gromyko in which Gromyko had boasted about the USSR’s free healthcare, zero unemployment, and zero homelessness. Carter responded ingenuously, “I couldn’t argue. We each had a convenient definition” of human rights, and “differences like this must be recognized and understood.” Foolish. Gromyko didn’t have a different definition. He was lying.

There were other liars who took advantage of Carter’s naivete. Among them was Yasser Arafat. In his ahistorical and tendentious 2006 book, Palestine: Peace not Apartheid, Carter asserted that Arafat and the Palestinian Liberation Organization had never advocated the annihilation of Israel when that goal was included in the founding charter of the organization. Recounting the history of the Six Day War, Carter claimed that Israel moved first against Egypt and Syria (which is true because they were poised to strike), but then attacked Jordan. That is false. Israel called upon Jordan to remain aloof from the fighting, but King Hussein, trusting Egyptian claims of success, elected to shell Israel.

Carter received well-merited criticism for that book (and similar advocacy) including from 14 board members of the Carter Center who resigned. For the most part, he handled it poorly. Regarding the title, he disclaimed any intention to compare Israel with South Africa while claiming courage for taking on the powerful Jewish lobby.

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3. A Catalogue of the GOP’s Paranoid Preoccupations

Bill Lueders in today’s Bulwark:

The world, according to MAGA Republicans, is a dark and dangerous place. There are constant existential threats. There’s vaccination. There’s critical race theory. Illegal immigrants are flooding across the country’s open borders, fentanyl in hand. Woke culture is remaking America into a dystopian leftist bootcamp.

Here’s some of what’s keeping the far right up at night.

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