Politics, ‘values’ and big money in the Wisconsin Supreme Court race

Everyone knows that money and politics have overrun Wisconsin’s nominally nonpartisan election for the state Supreme Court — now the most expensive in U.S. history.

One Washington, D.C.-based group is holding up our state contest as an example of how not to choose Supreme Court justices. The nonpartisan Election Reformers Network makes a compelling case that if we want an independent judiciary that can maintain its integrity, we must replace elections that turn justices into politicians with a selection process run by a nonpartisan judicial nominating commission.

That’s not going to happen this year.

Instead, we’re coming up on an April 4 election that is widely seen as a bellwether for the 2024 presidential race. Democrats are hoping Milwaukee Judge Janet Protasiewicz can leverage voter outrage over the dismantling of abortion rights in Wisconsin into a victory for their side, flipping the ideological balance of the court. Republicans are backing Dan Kelly, who has done a lot of legal work for the party, in the hopes of holding onto the current Republican-friendly majority in time for a potential challenge to the 2024 election results. Kelly is also backed by every major anti-abortion group in the state.

Kelly is positioning himself as the candidate who has remained above the political fray, promising “fidelity to the constitution,” while he says his opponent, whom he calls “Politician Protaciewicz,” has made “entirely, egregiously inappropriate” statements in support of abortion rights.

Neither candidate will bring us a less politicized court. 

Protasiewicz has stopped short of saying how she would rule in a case on Wisconsin’s 19th century abortion ban, but has said her “values” include protecting a woman’s right to choose abortion. She has frequently declared that in the coming election, “reproductive rights are on the line.”

Groups that support her, including Emily’s List and NARAL Pro-Choice America, clearly see her candidacy as a chance to overturn the law that makes abortion a felony  in Wisconsin.

Kelly, for his part, is no stranger to politics. He ran his last campaign out of Wisconsin Republican Party headquarters and advised Wisconsin’s fake electors. He also did legal work for Wisconsin Right to Life and he has taken a public stand on abortion — just not during the campaign.

Investigative reporter Dan Bice of the Milwaukee Journal Sentinel unearthed Kelly’s views, which were published between 2012 and 2015 on a blog called “Hang Together” and later deleted.

Among the highlights: Abortion is nothing more than “taking the life of an unborn child,” and abortion rights advocates just want to “preserve sexual libertinism,” Kelly also asserts in a blog post that allowing same-sex couples to marry is “an illegitimate exercise of state power” and derides safety net programs as “stealing” from taxpayers, writing that people who receive Social Security and Medicare “have chosen to retire without sufficient assets to support themselves.” 

Voters don’t actually expect that either candidate will surprise anyone once elected to the court. Everyone knows where they stand, and the state and national groups that back them are counting on them to keep on standing there.

Whether the candidates state their views on the issues during campaign events or just in deleted blog posts doesn’t really matter. 

The bigger problem is the progress special interest groups have made in taking over elections and buying our state Supreme Court. 

In answer to a question on “Capital City Sunday” about the massive amount of money pouring into the Wisconsin race from outside the state, Kelly said he’s not really concerned about it. “Money is there just to get the message out,” he said.

But in fact, money is the heart of the problem with the politicization of the court. 

As the Wisconsin Democracy Campaign has documented, Wisconsin Manufacturers & Commerce and Club for Growth kicked off the trend toward more and more expensive and politicized Wisconsin Supreme Court races back in 2007, as part of a coordinated national campaign to take over state supreme courts.

Democratic groups, especially the Greater Wisconsin Committee, began their own big spending spree on the other side. 

Protasiewicz has promised to recuse herself from cases brought by the Democratic Party of Wisconsin, which has spent a lot of money to support her. Kelly makes no such promise. He’ll weigh recusal on “a case by case basis,” he says. 

It’s the less high profile cases that matter most to the big donors who began pouring money into state supreme court races in the first place.

Beneath the air war of TV ads that focused on hot-button issues — especially crime — over the last couple of decades in Wisconsin, these donors’ real aim has been to buy themselves a friendly forum, shaping a court that would relax labor and environmental regulations. 

The goal of getting the politics out of judicial races is not to have judges who pretend they don’t have personal opinions on important issues. The point is to keep them independent of big donors. That is the meaning of the provision in the judicial code that bars candidates from making “pledges, promises, or commitments” regarding issues, controversies or cases likely to come before them. Protasiewicz’s opponents have suggested she violated this code with her statements on abortion rights and the Legislature’s “rigged” maps. But the meaning of the “commitments” provision, according to legal scholars, is that judges shouldn’t be making specific promises to rule in someone’s favor on a particular case, not that they shouldn’t be talking about their general views on issues.

The court’s weak recusal rules don’t provide any guard rail at all against corruption. The justices rejected proposed recusal rules for cases involving their own campaign contributors, endorsed by 54 retired judges, back in 2017. Instead, a narrow majority opted to keep a revised rule from 2010 that specifically instructed justices they need not recuse themselves from cases involving their donors. That adjustment was adopted during the same period big money started pouring in. Self-policing isn’t working. A better answer would be for the justices not to be beholden to big donors at all.