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Candidates clash in first and only Wisconsin Supreme Court debate

Janet Protasiewicz and Daniel Kelly fought over their records on decisive issues that the court could rule on in the coming years, such as abortion and redistricting.

By Nick Vachon - March 23, 2023
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Wisconsin Supreme Court candidates Republican-backed Dan Kelly and Democratic-supported Janet Protasiewicz participate in a debate Tuesday, March 21, 2023, in Madison, Wis.
Wisconsin Supreme Court candidates Republican-backed Dan Kelly and Democratic-supported Janet Protasiewicz participate in a debate Tuesday, March 21, 2023, in Madison, Wis. (AP Photo/Morry Gash)

MADISON, Wis. — On Tuesday afternoon, the two candidates in Wisconsin’s nonpartisan race for the open seat on the state Supreme Court met for their first and only in-person debate.

The debate, at the State Bar of Wisconsin in suburban Madison, was a bitter affair. Conservative former Supreme Court Justice Daniel Kelly and liberal Milwaukee Judge Janet Protasiewicz traded pointed barbs and said that each other’s campaigns were fundamental threats to the rule of law in the state.

“I am running against probably one of the most extreme partisan characters in the history of the state,” Protasiewicz said of Kelly during their debate Tuesday.

Former Gov. Scott Walker, a Republican, appointed Kelly to the state Supreme Court in 2016, but he lost his seat on the bench to Justice Jill Karofsky in 2020. Kelly previously served as president of the Milwaukee Lawyers’ Chapter of the Federalist Society, a national organization of conservative jurists.

The state’s highest court currently has a 4-3 conservative majority. The winner of the April 4 general election will replace retiring Justice Patience Roggensack, a conservative who has sat on the bench since 2015. With this race, liberals have a chance to win a majority on the court for the first time since 2008.

A liberal majority could potentially overturn Wisconsin’s 1849 abortion ban and replace the gerrymandered legislative maps, which give Republicans disproportionate influence in state government. The high stakes of the race have attracted record-breaking spending. Already, the race is the single most expensive state Supreme Court race in American history with $27 million already spent, according to WisPolitics.com.

Kelly targeted Protasiewicz over her expression of her personal views on abortion, her statement that the state’s gerrymandered legislative maps are “rigged,” and what he characterized as light sentencing in a handful of cases involving sexual predators.

Protasiewicz fired back, condemning Kelly’s close ties to the state Republican Party, his role in former President Donald Trump’s attempt to overturn the results of the 2020 presidential election, and support from state anti-abortion groups. Her opponent, she said, is “a true threat to our democracy.”

Throughout the debate, Kelly, who according to the New York Times is trailing in internal polling, and Protasiewicz accused each other of lies and slander. The candidates did not shake hands when they walked on stage or at the end of the debate.

“No handshaking after that,” one attendee said afterward as people filed out of the debate hall.

Here’s what the candidates said on the biggest issues in the race:

Abortion

Abortion is currently inaccessible in Wisconsin under an 1849 law that bans abortion in all cases except for a threat to the pregnant person’s life. Democratic state Attorney General Josh Kaul is challenging the law in a case that could end up in front of the state Supreme Court.

Advocacy groups have endorsed the judicial candidates along ideological lines. Anti-abortion groups such as Wisconsin Right to Life, Pro-Life Wisconsin, and Wisconsin Family Action have endorsed Kelly, while pro-choice groups EMILY’s List and Planned Parenthood Action of Wisconsin have endorsed Protasiewicz.

Responding to a question about those endorsements, Protasiewicz said:

I have been very clear about my values to the electorate because I believe the electorate deserves to know what a person’s values are, rather than hiding them. I think the electorate deserves to know. I’ve also been very clear that any decision that I render will be based solely on the law and the Constitution. I have told everyone I am making no promises to you.

“I can tell you that if my opponent is elected, I can tell you with 100% certainty that 1849 abortion ban will stay on the books,” she later added.

Kelly rejected Protasiewicz’s assertion.

“This seems to be a pattern for you, Janet, just telling lies about me. You don’t know what I’m thinking about that abortion ban — you have no idea,” Kelly fired back.

Redistricting

Also at issue were the state’s current legislative maps, which give Republicans a significant advantage in the state assembly and senate. Right now, even though Wisconsin is among the most evenly divided states in the nation, Republicans are just two seats away from a veto-proof supermajority in the assembly that would allow them to bypass Democratic Gov. Tony Evers.

“We know that the maps are unfair,” Protasiewicz said in response to a question about her ability to be impartial in the event of a case against the GOP-drawn legislative maps. “But the question is, am I able fairly to make a decision on a case? Of course I am. That’s what I’ve spent my entire career doing. I follow laws I don’t always necessarily like or agree with. That’s what you do. I can assure you: every single case that I will ever handle will be rooted in the law.”

Kelly didn’t say if he thought the maps would be able to withstand a legal challenge, but he emphasized that he believed the fairness of the maps was outside of the court’s purview. “Fairness of the maps is a political question. Political questions belong in the legislature. We all know that since grade school with ‘Schoolhouse Rock,'” he said.

Partisanship and money in politics

Much of the debate was occupied by the candidates attempting to paint the other as a partisan actor funded by special interests.

Both candidates have received substantial financial support from outside groups and political organizations.

Protasiewicz’s campaign received a $2.5 million transfer from the Democratic Party of Wisconsin. She later said she would recuse herself from cases involving the party, a point she reiterated on Tuesday. During the debate, she said the state should have stronger rules preventing judges from hearing cases that may involve conflicts of interest.

“I have been very, very clear that we need a recusal rule for our Supreme Court,” Protasiewicz said. “I have indicated and pledged that I will recuse myself from any case in which the Democratic Party is a party to the case. I think that that’s absolutely critical.”

Kelly replied that if Protasiewicz were elected, “she would forever afterwards be known as being bought and paid for by the Democratic Party of Wisconsin.”

Kelly has not committed to recusing himself from hearing cases involving major donors and supporters, instead insisting that, unlike Protasiewicz, his personal beliefs would not influence his jurisprudence.

“I think one of the most important responses to it is to have an understanding of the court’s job that insulates it from the effects of anyone’s outside interest,” Kelly said. “And you need to have a methodology so that when you analyze cases and write opinions, that it squeezes out all personal views and personal politics to make sure that the conclusions are commanded by law.”

Wisconsin Manufacturers and Commerce, the state’s largest business lobby and a consistent donor to conservative candidates, is backing Kelly to the tune of $3 million. He has also received support from conservative dark money groups such as Fair Courts America, which is associated with the right-wing billionaire Dick Uihlien.

Supporters of the candidates did not appear to have had their allegiances swayed by the opposing candidate’s performances.

“The job of a Supreme Court justice is to look at the facts in front of them and interpret the law as it is written,” Larry Byer, a retiree, said before the debate. “That’s why I’m very strongly supporting Daniel Kelly.” After the debate, Byer said nothing he heard from the two candidates changed his mind.

Wisconsin Supreme Court Justice Rebecca Dallet, one of the court’s liberal justices, told the American Independent Foundation that Kelly’s debate performance, which she described as aggressive, was telling.

“I think all of his conduct shows exactly what he’s been doing, which is trying to get back on the court. He was put there by Scott Walker, he was not elected by the people, he’s been working for the Republican Party since and he feels entitled to that position,” she said. “I’m really hopeful that the voters on April 4 are going to see through that and elect Judge Janet Protasiewicz.”

Published with permission of The American Independent Foundation


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