Wisconsin Supreme Court Flips Liberal—Congratulations Janet Protasiewicz! April 10, 2023
Wisconsin—a swing state. It’s often up for grabs in local and national elections. Since 2010, when arch-conservative GOP Scott Walker was elected the Badger State’s Governor, GOPers both state and nationwide, determined to make Wisconsin a “laboratory” for contemporary far-right conservative ideas. “Team Red” hoped to impose on the rest of the nation what it would do in Wisconsin (See politico.com). Walker and his GOP-dominated state House chambers created ultra-gerrymandered maps to keep “Team Red” dominant for a decade and the conservative Roberts Supreme Ct. upheld these politically contorted maps in 2019 (Cohen & Cook 2022, Political Almanac). The High Court told the states and their voters to change these maps on their own, if they didn’t like them. While Obama won WI by 7 points in 2012, Hillary committed political malpractice by never campaigning there. Trump won this state, a key to his electoral 2016 win by 22, 748 votes and by less than a point (Cohen & Cook 2022). Biden’s team narrowly took back WI in 2020 (Cohen & Cook 2022). Even when Democrat Tony Evers defeated Walker in 2018 to take over the WI governorship, his progressive agenda was often blocked by the GOP state legislature. WI GOPers also had a conservative backstop in the state’s Supreme Court. Since 2008, or for the past 15 years, WI’s Supreme Court had a 4-3 conservative majority. While much of the nation focused on Trump’s April 4, 2023 34-count NY arraignment, Trumpism suffered a more severe blow on that very same date in WI. In a state where the voters elect their supreme court justices, liberal Judge Janet Protasiewicz (pro-tuh-SAY-witz) clobbered her opponent for the Badger high court bench, conservative and former WI Supreme Ct. Justice Daniel Kelly, by over 11 percentage points, 55.52%-44.48% (Milwaukee Journal Sentinel, jsonline.com, Beck, Hess, & Schulte, 4/05/23). Again, for the first time in 15 years, liberal Democrats flipped control of the WI high court in a major off-year election (npr.org., Johnson, S, 4/04/23).
The contest for this open seat occurred after Justice Patience Roggensack announced her retirement in the spring of 2022. Protasiewicz (60) was raised on the south side of Milwaukee in a Polish Catholic family (Hess & Bice, jsonline.com, 3/17/23). She received a 1985 undergraduate degree in education from the University of Wisconsin—Milwaukee and a 1988 law degree from Marquette University Law School(Hess & Bice, jsonline.com). After law school, Protasiewicz joined the Milwaukee County District Attorney’s office where she was an assistant district attorney for 26 years (pbswisconsin.org). While in the Milwaukee DA’s office, Protasiewicz was a member of the employees’ union. She participated in several of the protests against the 2011 Wisconsin Act 10. That legislation was anti-union Gov. Walker’s “Budget Repair Bill” (NOT) which stripped many collective bargaining rights from WI labor unions (wpr.org, Johnson, S., 3/30/23). In 2013, Protasiewicz unsuccessfully ran against a Gov. Walker appointee for a Milwaukee County circuit judge post, but still took 47% of the vote (Canvass Results for 2013 Spring Election). In 2014, when Milwaukee County judge Charles Kahn announced his retirement, Protasiewicz ran for this open seat and won it without opposition. In 2020, she again won re-election with no opposition. She was assigned to family court cases. She also presided over felony, domestic violence, and drug court cases (Hess & Bice,jsonline.com, 3/17/23, elections.wi.gov/sites, wiki). In the spring of 2022, Protasiewicz announced her candidacy for the WI Supreme Ct. 2023 election. She came in first in the four-person primary to replace retiring Justice Roggensack and then had to face former WI Supreme Ct. Justice Daniel Kelly to win this seat (Kuhagen, 2/21/23, jsonline.com).
Normally, judicial races are considered non-partisan and candidates are supposed to campaign “above the fray.” Judge Protasiewicz changed these long-held notions and made her political priorities central to her campaign. She made explicit and repeated constantly her support for abortion rights, a “y uu ge” issue after Alito and his Supreme Ct. overturned “Roe v. Wade.” She called the GOP-designed redistricting maps which gave Republicans near super-majority control of the legislature “rigged” and “unfair (Epstein, R., 4/05/23, nytimes.com).” In 50-50 swingy WI, these rigged maps have additionally allowed GOPers to hold 6 out of 8 U.S. House seats (npr.org, Johnson, S., 4/04/23). Judges on this new 4-3 Protasiewicz liberal court are all but certain to hear a challenge to WI’s pre-Civil War 19th Century abortion ban. They will, no doubt, consider a lawsuit to overturn WI’s contorted GOP-drawn legislative maps (npr.org, Johnson, S., 4/04/23). In addition, the new liberal WI Supreme Ct. will consider and, hopefully, throw out the state’s anti-union right-to-work law. Private school vouchers that aim to gut public education could also be reversed as well as voting rights restrictions. Gov. Walker’s anti-union law that limited collective bargaining for public employees, Act 10, could now be overturned with the new liberal court majority (Beck et al, jsonline.com, 4/05/23). In 2024, the time of the next presidential election, the WI Supreme Ct. will have this liberal majority, because of Protasiewicz’s victory. In 2020, when Biden won WI, only one conservative judge joined the liberals in lawsuits brought by GOPers that wanted to overthrow Biden’s victory and put new “fake” Trump electors in their place (See jsonline.com, Beck et al 4/05/23).
And here’s Daniel Kelly (59), whom Protasiewicz soundly defeated. Santa Barbara, CA native Kelly grew up in Arvada, Colorado. He moved to WI in 1982 to attend Carroll University from which he graduated in 1986. He went to Pat Robertson’s Regent University School of Law where he was the founding editor-in-chief of the law review and graduated in 1991 (Daley, badgerinstitute.org, 10/18/17). After two judicial clerkships, Kelly worked in private practice in a Milwaukee law firm. During that time, he represented Republicans in the WI legislature where he dealt with lawsuits over the 2010 legislative redistricting. He left his law firm to serve as general counsel for the Kern Family Foundation, a conservative non-profit in Waukesha County (archivejsonline.com, 11/08/22). After WI Supreme Ct. Justice Prosser retired in 2016, Gov. Walker appointed Kelly to fill this vacant position. Walker was criticized for selecting a Justice with no judicial experience. Kelly was also criticized for holding the fringe view that affirmative action was “comparable to slavery (Leuders, isthmus.com/api,3/08/23).” On the WI Supreme Ct., Kelly wrote an opinion holding that the City of Madison is forbidden from banning passengers from carrying firearms on city busses (Vielmatti, 3/07/17, jsonline.com). When Kelly ran for a full 10-year term on the WI Supreme Ct., he was defeated in 2020 by liberal Jill Karofsky who still sits on that state’s high court (jsonline.com, Beck, et al jsonline. Com, 4/05/22).
Kelly’s ultra-“Red” partisanship was visible to any reasonable Wisconsinite viewing this election. After he left WI’s Supreme Ct., Kelly was paid $120,00 by the WI State Republican Party and the Republican National Committee. In the weeks after the 2020 presidential election, Kelly provided legal counsel to the WI GOP to overturn Biden’s 2020 election victory. Former WI GOP Chair Andrew Hitt stated in a deposition that he and Kelly “had pretty extensive conversations” about the illegal fake elector scheme in WI. That fake elector scheme was one of the most well-known attempts to overturn the 2020 U.S. Presidential election that Biden clearly and handily won (See pbswisconsin.org, nbcnews.com, 2/27/23, Hasen, R., 2/17/23, electionlawblog.org).
And of course, we must always “follow the money.” Kelly’s biggest financial backers included Wisconsin Manufacturers and Commerce and a group called Fair Courts America. Fair Courts America is funded by right-wing GOP megadonor Richard Uihlein. Together, these groups spent more than $10 million on ads criticizing sentences that Protasiewicz handed down as a Milwaukee County judge. This GOP money came in heavily during the closing weeks of the campaign, when many voters finally start to tune in to the race (See npr.org, Johnson, S., 4/04/23). Fortunately, Protasiewicz was able to counter Kelly’s financial haul by raising more than $14 million in 2023, the bulk of which came in transfers from the state Democratic Party. Nearly $29 million was spent on political ads. Anywhere from $40-45 million was spent on this race, the most expensive judicial election in U.S. history and a very highly watched national contest (See npr.org, Johnson, S., 4/04/23).
Unlike Protasiewicz, who strongly made her political stands on abortion, redistricting, and other major issues well-known, Kelly tried to downplay his stands on key matters, especially abortion. Still, “I won’t tell you where I stand on abortion” Kelly, was endorsed by three anti-abortion groups, Wisconsin Right to Life, Wisconsin Family Action, and Pro-Life Wisconsin (Bauer, S., 2/27/23). Get real! No anti-abortion groups will endorse a candidate they believe is pro-choice or “wishy washy” on being against abortion.
Normally, WI political races are very close. Democrats often eke out victories by getting strong turnout in just 6 counties. These include Dane (Madison), Milwaukee, Douglas, Ashland, Bayfield, and Menominee Counties. When conservatives won close WI races, it was because of high turnout in the WOW counties of suburban Milwaukee, Washington, Ozaukee, and Waukesha. Judge Protasiewicz won 27 WI counties! She won all of the counties west and south of Madison. These are largely rural areas. She also took counties south of Green Bay and the Fox River Valley counties that include Appleton (home of the late GOP demagogue Sen. Joe McCarthy and of the conspiratorial John Birch Society), Menasha, and Oshkosh. This area is normally “Red” but flipped “Blue” in this race. Democrats feel good when the WOW counties give them a little over 30% of the vote. This time, suburban Milwaukee WOW counties gave Democrats 38%, 42%, and 48% of their votes. Wow (no pun intended)! (See dailykos.com, Windtalker, 4/05/23).
Judicial candidate Kelly has now lost two attempts to win a WI Supreme Ct. seat by 11 percentage points, when Karofsky defeated him in 2020 and now when Protasiewicz beat him by the same margin (Beck et al, 4/05/23, jsonline.com). And what was the reaction of the two candidates in this judicial race? In victory, Protasiewicz stated, “Our state is taking a step forward to a better and brighter future when our rights and freedoms will be protected (nytimes.com, Epstein, R., 4/04/23).” And Kelly’s reaction in defeat? He declared, “I wish that I’d be able to concede to a worthy opponent, but I do not have a worthy opponent. I wish Wisconsin the best of luck, because I think it’s going to need it (Epstein, nytimes.com, 4/04/23).” Sound familiar? We have a sore Trumpian loser who blames everyone else but himself.
Protasiewicz will take office on August 1, 2023 for a term that runs until 2033. What did we learn from this election? Again, pro-choice is a winning issue for the general public. It also looks like overturing rigged gerrymandered maps that the GOP drew did not go over well. However, democracy is fragile. We can never rest on our laurels in WI or anywhere else. In 2025, WI conservatives can flip its High Court back and issue reactionary decisions once again. The only way to stop this? Democrats and moderates must come out in droves to keep Protasiewicz and her allies in charge, just as they must do in all state and national elections for “Team Blue” candidates.