by Henry Redman, Wisconsin Examiner
January 10, 2023
The four judges vying to fill an open seat on the Wisconsin Supreme Court appeared together at a forum hosted by Wispolitics.com Monday to debate the values and judicial philosophies they say they’ll bring to the court if elected.
On stage at the Monona Terrace Convention Center in Madison were the two conservative-leaning candidates, Waukesha County Circuit Court Judge Jennifer Dorow and former Supreme Court Justice Daniel Kelly, as well as the two liberal-leaning candidates, Dane County Circuit Court Judge Everett Mitchell and Milwaukee County Circuit Court Judge Janet Protasiewicz.
One member from each ideological wing is expected to advance past the primary, putting the balance of the court, which conservatives currently control 4-3, at stake.
Dorow, who gained national attention and jumped into the race after presiding over the criminal trial of Waukesha Christmas parade attacker Darrell Brooks last year, has been endorsed for the race by Supreme Court Justice Patience Roggensack — whose retirement is creating the open seat. At the panel, Dorow repeatedly refused to give her thoughts on issues as varied as political redistricting and the 2nd Amendment.
Dorow said that her commitment to being “fair and impartial” meant that she wouldn’t give any details as to how she might rule in any case.
“The role of a judge at its core is to apply the law, not make it. Laws are written and words have meaning,” she said. “The role of a judge should not be interfered with by our political views. We wear a black robe in part to tell of our authority, but also to shield us from the biases and prejudice we undoubtedly bring from our personal experiences.”
Several times, when asked specifically about her opinions on certain issues, Dorow wouldn’t give a clear answer.
“Now there is talk about further challenges, so I will not put myself in a position to pre-judge anything but as with any case, I will listen to the challenge and I will apply the law to the facts at hand,” she said in response to a question about partisan gerrymandering in Wisconsin’s political maps.
The prospect of Wisconsin’s voting maps coming before the state supreme court makes this election particularly significant. Democrats hope a court with a different ideological tilt will overturn the existing map, which favors disproportionate GOP control of the Legislature. Recently, when the conservative-dominated court ruled on the matter it upheld the current map on the grounds that it abided by the principle of “least change” to the previous map, which had been reworked to favor Republicans a decade ago.
One of the few times Dorow revealed more about her views came in response to a question about how she would protect voting rights if elected to the bench.
“Not only is the right to vote essential, it is core to our democracy, I also believe election integrity is vital,” she said, referencing the common right-wing call for election integrity that has been made since the emergence of conspiracy theories about the 2020 presidential election.
Kelly was appointed to the court in 2016 by former Republican Gov. Scott Walker and lost his seat to Justice Jill Karofsky in 2020 despite carrying the endorsement of then-President Donald Trump.
Kelly’s time on the court was marred by accusations of coziness with Republicans and reversals on decisions to recuse himself from cases, yet at the panel, he attempted to position himself as an experienced jurist who regularly angered both the left and right with his opinions because he only gives deference to the “original public meaning” of the law and never allows his personal opinions to seep in.
Prior to his term on the Supreme Court, Kelly had written that Social Security and other safety-net programs were comparable to slavery and when he was on the court he drew criticism for repeatedly siding with clients represented by the Wisconsin Institute for Law & Liberty, a right-wing legal advocacy group. Kelly previously served on WILL’s litigation advisory board.
“Politics is poison to the work of the court,” Kelly said. “Everybody who comes to the court, regardless of what they want to tell you, has political beliefs. The question is whether they can set them aside to do the work of the court. In order to do that you need to have a methodology developed and ready at hand that you can apply every single day.
In one of the few times a candidate directly criticized the comments of others on the stage, Kelly took a shot at the two liberal candidates for saying they don’t prejudge cases but do bring their own values to the bench.
“I think when someone tells you what their values are in an answer to a legal question, they’re telling you how they’re going to decide a case,” Kelly said in response to a question about redistricting.
Kelly said that legal challenges to the state’s maps are difficult because the process for drawing them is entirely political and the relevant legal standards are incredibly narrow.
“It is political from start to end. There are legal elements of that, we do have legal standards to what a map must do, it has to have equal population, if you look at our constitution, it tells us the districts must be compact and contiguous, these are legal requirements,” he said.
“Courts are for the law and the law alone, it is not for politics. And so when a map comes to the court with a challenge that it is unlawful in some regard, the court’s responsibility is limited to considering the legal challenges, not the political challenges. How districts get apportioned according to political considerations must have no purchase in the courts. Unless we’re dead set on tearing down the distinctions between branches of government that our constitution created.”
Kelly’s interpretation of the law as giving no room for courts to determine if a politically gerrymandered map — such as Wisconsin’s — is unlawful, benefits the state’s Republicans who have entrenched authority in the Legislature because of how the districts are drawn.
Candidates Protasiewicz and Mitchell
The two liberal candidates were much more vocal about how they believed the law can and should be interpreted to make Wisconsin a fairer and more just place to live. Protasiewicz frequently touted herself as a “commonsense” candidate fighting to rid the court of “extremism” while Everett frequently pointed to ways he’s pushed to make the criminal justice system more kind.
In response to the redistricting question, which specifically asked the candidates to weigh in on the “least change” standard the Supreme Court used last year to choose which maps would be implemented, both of the liberal candidates criticized the decision.
Protasiewicz immediately said that the “maps are rigged,” and do not fairly represent the state’s voters.
“Well let’s be clear here, the maps are rigged, bottom line. They do not reflect the people in this state, they do not reflect, accurately, representation in the state Assembly or state Senate,” she said. “I don’t think you could sell to any reasonable person that the maps are fair.”
Mitchell, who is Black, pointed to erosion in voting rights he’s seen since the U.S. Supreme Court struck down parts of the federal Voting Rights Act in the 2013 decision Shelby County v. Holder.
“When we think about the nature of maps and that the Supreme Court in many ways had to make that decision, it was because our democracy in many ways has become broken, partisanship has become broken,” Mitchell said.
“So I think in order to restore people’s faith in our democracy, what we need to do is ensure that legislative districts are drawn in a fair, nonpartisan way. And I think how extremely partisan our maps have gotten, we’re saying to folks on the left and to the right, that your voices don’t matter in these districts, only party leadership does. So I think you’re right, in a sense that yes, the law is a place for us to consider these bigger things, but it’s also the implications that our laws will have upon the lives of people that I believe the constitution asks for us to be able to make.”
Mitchell added that for many people in his community and the communities of other marginalized groups, the term “least change” has always been interpreted as a way for power to entrench itself.
“Least change of course always means the same, it always means wait, it always means never and it always means more oppression and more pain for folks who don’t have a voice in the political process,” he said.
Two of the four candidates will emerge from the officially nonpartisan primary, which is set to take place Feb. 21.
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