Volume 34, Number 2

Supreme Court Election a Sea Change in Wisconsin, with Possible National Implications

Fred Schepartz

There was a truly wonderful day early last month.

Earlier in the day, Giant Baby Man surrendered to the Manhattan District Attorney to be arraigned and (ahem) processed. (And this shall be my last mention of that hideous creature in this piece.)

And then, in what dwarfed the great news from earlier in the day, Milwaukee County Circuit Court Judge Janet Protasiewicz soundly defeated former Supreme Court Justice and supreme Republican party hack Daniel Kelly, flipping the majority conservative court to a majority liberal supreme court.

No, not defeated.


Not even remotely close. In Wisconsin statewide elections, we’re plenty used to not having an outcome until the wee hours of the night or even the next days, especially given the huge number of mail-in and in-person absentee ballots that can’t be counted until election day—this is the actual reason for the alleged late-night ballot dumps in Milwaukee. It simply takes that long to count the absentee ballots, and generally Milwaukee doesn’t count them until the election day ballots have been counted.

Not this night. It was over well before 10pm.

When it was all said and done, Protasiewicz beat Kelly by more than 11 percentage points and more than 200,000 votes.

A royal stomping.

I have a lot to say about this election, a whole hell of a lot.

First, this is a profound sea change for Wisconsin. After eight years of Scott Walker and Republican dominated gerrymandered legislatures, we finally kicked Walker to the curb and got Tony Evers who was reelected by a safe margin last fall.

Unfortunately, Evers has little chance to get anything accomplished given the legislature, a rather petulant one at that.

And so much of it is about gerrymandering.

Back in 2012, the first legislative election following the 2011 redistricting, Dems statewide garnered a little over half the vote, if I remember correctly, but took a little more than a third of the legislative seats. The redistricting process was sleazy from the word go. It was all done in secret and clearly resulted in not only a dilution of voting power for Democrats, but also targeted minority voters as well.

Years later, a legislative aide testified that some Republican legislators were literally “giddy” over the prospects of gerrymandering, especially racial gerrymandering.

A long time ago, I figured, okay, that’s how it’s going to be, but we knock out Walker in 2018, and the Democratic governor will veto the legislature’s redistricting. There’s a deadlock, and a judge draws fair districts.

After all, that exact thing had happened before.

Except I didn’t account for the action of arguably the most corrupt state supreme court in the country.

It boggles the mind, but we ended up with even more severely gerrymandered districts.

But now, we will have a fair Wisconsin Supreme Court, not a court that served as little more than a rubber stamp for a far rightwing extremist legislature and Scott Walker.

We will have a court that actually reflects the will of the populace, not the billionaires, not big business, not White Christian Nationalists.

Most assuredly, the question of gerrymandering will come before the Wisconsin Supreme Court, and when it does, we can count on a fair hearing. Republicans are losing their minds over statements Protasiewicz made during the campaign that the current set of maps are “rigged.” They claim that she already has her mind made up on the issue.

But can anyone possessing a modicum of intellectually honesty claim that the conservatives on the bench don’t have their minds made up about gerrymandering?

I seriously doubt that anyone with a truly open mind would come up with any other conclusion than what Protasiewicz stated. And I do want to state that I understand that what happens next may not result in automatic majorities for Democrats. Nor would I want that as a foregone conclusion. I mainly want to see more competitive elections that would result in far less extremism coming from the right side of the aisle.

Then there is the question of abortion.

Protasiewicz was emphatic that she is pro-choice. Kelly tried to run from the issue despite the fact that Right to Life Wisconsin endorsed him. Oh, and it is worth mentioning that the organization actually attempted to scrub from their website references to what criteria their endorsement requires, essentially, an extreme, hard-line, anti-choice stance.

I guess they never heard of screenshots.

As we have seen all over the country, abortion is a huge, huge issue in the wake of the overturning of Roe. That SCOTUS decision essentially outlawed abortion in Wisconsin, defaulting back to a law passed in 1849 that makes abortion illegal, with no exceptions for rape or incest. The law passed in the senate by a mere two votes and a good half century prior to women winning the right to vote.

That is not what democracy looks like.

Again, Kelly intentionally misled the voters on abortion. He did what conservative judicial candidates always do. Despite the fact that his stance on abortion was well known, he tried to claim that he would just call balls and strikes, that he would never let his personal feelings get in the way of passing fair judgment.


Kelly’s mind is closed on this issue. And with 100 percent certainty, I would say the same thing about the three conservatives currently sitting on the supreme court.

Abortion was deeply important to the voters, especially the Gen Z voters who showed up in droves, leading Scott Walker to blame indoctrinated youth for the loss.

Wrong, wrong, wrong. Gen Z is extremely motivated on the issue of abortion. How can they not be motivated when they see a right that belonged to their mothers and grandmothers taken away from them? Young people are tired of this extremist crap that passes for public policy that comes from the Republican Party. They want action on abortion, and they want action on guns, and they want action for LBGTQ rights.

And a quick aside, one has to be moved by the courage exhibited by these young people in public office, like Montana Rep. Zooey Zephyr who has been barred from the House floor for speaking out on transgender rights, like Tennessee House Reps. Julian Jones and Julian Pearson who were expelled for demanding action on gun control.

Oh, but there was a great deal of the proverbial clutching of the pearls over Protasiewicz’s expressions of personal opinion. Let us be clear that judges and justices all have personal opinions. We don’t need to know all of their preferences, but personally, I like to have some kind of idea in terms of where they stand.

I also do expect fairness and impartiality.

These notions do not have to be mutually exclusive.

Barbara Crabb is one of my favorite judges. She is now a senior judge in Wisconsin’s U.S. Western District, meaning she is essentially retired. She is well-known for her 2014 decision finding that Wisconsin’s constitutional and statutory bans on gay marriage were unconstitutional, thus paving the way for marriage equality to become the law of the land.

Crabb throughout her career was reliably liberal, but it is worth noting that she didn’t always rule the way I wanted her to rule. However, I could never fault her reasoning, even when it displeased me.

We live in the real world. In the real world, supreme court justices will tend to skew liberal or conservative or maybe moderate. We have RGB, and we have Scalia.

Attorneys and law students write for law journals. Certainly they will express judicial philosophies in the process. That should not preclude them from serving as a judge or justice. Such writing demonstrates scholarship, sometimes of a high level. Such scholarship is exactly what I want to see in someone serving on the bench.

And let’s keep in mind, that when the U.S. Senate considers appointments to the federal bench, they will look at the candidate’s legal scholarship. Having an opinion or a philosophy does not make one a judicial activist.

The right tends to accuse any judge or justice who skews liberal of being a judicial activist.

But really, are there any examples of judicial activism as glaring as Thomas and Alito?

The Wisconsin Supreme Court election, for good reason, drew attention (and money) from all over the country. By far, it was the most expensive state supreme court election in this history of this country.

More pearl clutching. Oh, and a pox on both your houses loudly expressed mentality.

Republicans whined about all the out of state money that went to Protasiewicz’s campaign, that she was able to outspend Kelly by a huge margin. This, of course, ignores the huge amount of third party money that was spent on Kelly’s behalf. More on that in a moment.

I do want to say that campaign spending in this election was way out of hand, as is the case with all statewide elections in these post Citizens United days. To a large degree, it was a battle of billionaires on both sides. This is really not how are elections should be run if we are going to be a true democracy.

However, Protasiewicz and the Democratic Party operated well within the rules, rule that they did not create.

And let’s keep in mind, that Wisconsin campaign finance law has entirely been created by Republicans from an absurdly gerrymandered legislature.

For this election, our side was able to fight fire with fire, but this is a precarious situation because we have not always been able to do this, and there’s no guarantee that it is sustainable.

If you’re looking here for moral equivalency, you’re looking in the wrong place.

It is important to point out differences between campaign spending and what it meant to the respective campaigns. George Soros and Illinois Governor J.B. Pritzker each donated $1 million to the Democratic Party, who in turn donated millions to the Protasiewicz campaign.

Yes, this skirts individual donation limits but it is legal, again, thanks to Wisconsin Republicans. Interestingly, there is talk about repealing that loophole, mainly because it was used against them.

Donations to a political party are disclosed, so we know who is donating and how much they are paying out. It is further worth noting that because most of the spending on political ads was done directly by the Protasiewicz campaign, it had control over content and paid lower rates. Overall, they were outspent, but they were able to spend much more efficiently.

Kelly supporters opted to go the Dark Money route, donating through non-profit organizations who are largely exempt from campaign finance laws as long as they don’t coordinate with the campaign on whose behalf they are working. There are no limits and no disclosure of donors.

We cannot be sure how much money he paid out on Kelly’s behalf, but we are pretty sure that Illinois billionaire Dick Uihlein kicked in millions to help Kelly get elected. Last fall, Uihlein personally paid millions to bankroll horribly racist ads that help Senator Ron Johnson get reelected by a few thousand votes.

Enter Wisconsin Manufacturing and Commerce, a rightwing business lobbying organization that has been meddling in Wisconsin politics for decades now and has done untold damage to the state in the process. Way back when, Wisconsin Supreme Court elections were quiet little affairs, until WMC decided to start buying supreme court justices.

This election cycle they were a bit late to the game, but buffeted by Uihlein millions, they jumped in big.

And the campaign predictably was about as ugly as I’ve ever seen.

First, I have to mention that Protasiewicz featured ads attacking Kelly’s record as a defense attorney, defending rapists and child molesters. While yes, that is his record, and it is fair game, it is at best unseemly to attack defense attorneys for who they choose to defend. A bedrock principle of our judicial system is that everyone deserves competent defense.

And it is worth noting that those ads seemed to appear less frequently later in the campaign, which instead attacked Kelly’s extreme anti-choice stance.

WMC’s ads featured racism, pure and simple. They cherry-picked Protasiewicz’s judicial record and tried to portray her as soft on crime. Whenever possible, ads featured images of Blacks in an effort to drum up fear base-emotions in the target audience.

Rhetoric often described Protasiewicz as “Soros funded,” which by the way is Anti-Semitic code, referring to “Globalist” conspiracies that Jews run the world.

WMC bankrolled an ad that featured a rape victim whose case was held in Protasiewicz’s courtroom. The gist of the ad was that the rapist received a light sentence, which ignored the wishes of the victim.

The reality is that the victim didn’t have a problem with Protasiewicz or the sentence. What she had a major problem with is that she was contacted about the ad, given the option to participate and was told that the ad would run regardless of whether or not she cooperated.

The woman publicly stated that being contacted and told this revictimized her.

The subsequent uproar was such that WMC ended up pulling the ad.

And that’s not all. A whisper campaign was raised where the stepson of a man Protasiewicz had been married to 30 years ago tried to accuse her of elder abuse and using a racial vulgarity. No other family members corroborated his claims.

Given the ugly tone of the campaign, it came as little surprise that Kelly went full sour grapes during his “concession” speech, which was anything but. Personally, I think Kelly had downed a few, but the speech offered no congratulations to Protasiewicz, nor any graciousness. He said he would love to congratulate a worthy opponent, except he didn’t have a worthy opponent. He even went so far as to call her a pathological liar.

The simple fact of the matter is that he was a horrible candidate. He had never served as a judge before Scott Walker appointed him to fill a vacancy on the Wisconsin Supreme Court, presumably for payback for previous services rendered. His decisions on the bench reeked of partisanship. He refused to recuse himself despite conflicts of interest. When he ran for election, in 2020, he lost by 160,000 votes. Following his first defeat, he provided legal services to the Wisconsin Republican Party in its efforts to overthrow the results of the presidential election.

So now, for the first time in 15 years, we have a supreme court that does not have a conservative majority. We can’t know what that will mean over the long haul. We do know that the questions of abortion and gerrymandering will get a fair hearing, as will questions of voting rights and election law. Unions will get a fair shake. We do know that the court will no longer serve as a rubber stamp for the state legislature. We can be pretty sure that the next time a governor is the subject of a “John Doe Probe” (kind of like a grand jury) involving running a nationwide money-laundering scheme during a recall election, that this supreme court won’t jump in to stop the investigation.

And I think we can be pretty sure that this result will have meaningful implications nationwide as well. For instance, this incoming court won’t overturn Wisconsin electoral results, which the current court almost did.

Future opinions over issues such as abortion and gerrymandering could serve as advisory precedent in similar cases around the country.

Protasiewicz’s victory means that liberals have won three of the last four Wisconsin Supreme Court elections since 2018, demonstrating that the electorate largely rejects rightwing Christian Nationalist extremism.

Today is a better day here in Wisconsin and all over the country as well.