by Henry Redman, Wisconsin Examiner
March 21, 2023
This story has been updated.
In the only debate of an increasingly expensive and heated campaign between Milwaukee County Judge Janet Protasiewicz and former Supreme Court Justice Dan Kelly for an open seat on the Wisconsin Supreme Court, the two candidates exchanged attacks over their impartiality, legal histories and political allegiances.
During the debate, hosted Tuesday afternoon by the Wisconsin State Bar, each candidate made several accusations that the other is a liar.
The race for the seat, set to become vacant following the retirement of conservative Justice Patience Roggensack, will determine the ideological sway of the seven-member court. While the race is officially nonpartisan, Kelly is running as a conservative and Protasiewicz as a liberal.
The first time the court’s lean has been up for grabs in more than a decade, the race has blown away national fundraising records for judicial campaigns.
Kelly served on the court for four years from 2016 to 2020 after being appointed to an open seat by former Republican Gov. Scott Walker. He lost reelection to liberal Justice Jill Karofsky by a 10-point margin.
Candidates faced off Tuesday
On Tuesday, Kelly’s attacks on Protasiewicz grew increasingly pointed as he argued — as he has throughout the race — that she would bring her political views to the bench. Several times, Kelly said Protasiewicz was a liar or slandering him.
“Again, this is you being quick to lie,” Kelly said in response to Protasiewicz saying the support he’s received from outside political organizations signals which political side his decisions will benefit. “This has been apparent in all your ads against me. It’s been apparent every time you speak about me. It’s just full of deceit.”
Protasiewicz, on the other hand, regularly argued that Kelly’s history of working for the Republican party and its related interest groups should signal how he will rule — even though throughout the campaign he’s said he will only decide based on the rule of law.
“I am running against probably one of the most extreme partisan characters in the history of the state,” Protasiewicz said. “This is somebody who advised the Republican Party on the fake electors. This is somebody who was running his former office out of the Republican Party headquarters. This is somebody who’s given legal advice to the Republican Party over and over and over.”
The race for the open seat has taken on an increased importance because the court is likely to play a major role in coming years as the arbiter between the divided government in Wisconsin’s executive and legislative branches. The winner of the race will likely be the swing vote in cases over abortion access, the state’s legislative maps and voting rights.
Throughout the campaign, Protasiewicz has repeatedly shared what her “personal values” are over abortion rights, saying she believes women should have the right to choose to get an abortion. Kelly has often pointed to these statements as evidence she is pre-judging a case.
A lawsuit against Wisconsin’s 1849 outlawing abortion is currently pending in the courts and the winner is likely to play an important role in its outcome.
“I would say that I have been very clear about my values to the electorate because I think the electorate deserves to know what the person’s values are rather than hiding,” Protasiewicz said. “I’ve also been very clear that any decision that I render will be made based solely on the law and the Constitution. I have told everyone I am making no promises to you. But 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.”
Protasiewicz, who has received endorsements from Planned Parenthood and Emily’s List, organizations that favor abortion rights, pointed to Kelly’s endorsements from anti-abortion groups such as Wisconsin Right to Life as evidence he’s also signaled his views on the issue.
Wisconsin Right to Life, which is working to strengthen Wisconsin’s abortion ban, states on its political endorsement web page that candidates pledge to support their values to receive their endorsement.
“The Wisconsin Right to Life Political Action Committee endorses candidates who have pledged to champion pro-life values and stand with Wisconsin Right to Life’s legislative strategy,” the page states. “In judicial elections, the Wisconsin Right to Life Political Action Committee endorses candidates whose judicial philosophies and values fit with those of Wisconsin Right to Life.”
Kelly said Protasiewicz was lying when she said his endorsements show he has made pledges on the issue.
“That’s absolutely not true, once again,” Kelly said. “So this seems to be a pattern for you, Janet, is telling lies about me. So you don’t know what I’m thinking about that abortion ban. You have no idea, these things you do not know. What I know is this: the endorsements I’ve received are entirely because of conversations that I have with individuals or organizations in which they asked me what kind of a justice will you be and I explained to them at length the role of a jurist instead of talking about politics, which is all you do.”
Whoever wins the race will also be a crucial vote in a likely challenge to the state’s legislative maps, which are frequently characterized as the most gerrymandered political lines in the country.
Protasiewicz has said several times throughout the campaign that the maps are “rigged.” On Tuesday, she indicated she agreed with the dissent written by the court’s liberal justices in the state Supreme Court case that decided the maps last year.
“I think the map issue is really kind of easy, actually. I don’t think anybody thinks those maps are fair, anybody,” she said. “But the question is, am I able to carefully make a decision on a case? Of course I am. It’s what I’ve spent my entire career doing, follow laws I don’t always necessarily like or agree with, you follow the law, that’s what you do. I can assure you that every single case that I will ever handle will be rooted in the law 100%. If you look at the dissent in that maps case, that dissent is what I will tell you I agree with.”
Kelly, who was one of the lawyers who worked with Republicans to install the 2011 maps that entrenched the state’s gerrymandering, said that is another example of an issue in which Protasiewicz is pre-judging a case.
“Well there you have it, I think she’s just told you how she’d resolve the case,” Kelly said. “See this is the problem you have when we get a candidate who does nothing to talk about her personal politics. She’s already told each and every one of us how she will approach this and although she says the formulaic words that she will follow the law, she’s never said one thing in this campaign that would lead to any reasonable belief that that’s what she would do.”
The candidates also sparred over the increasingly negative attack ads that have aired about them during the campaign.
Protasiewicz regularly alluded to the complaints raised in her campaign’s ads which paint Kelly as a partisan extremist with a “corrupt” history of siding with groups that had supported him financially and participating in Republican efforts to overturn the 2020 election.
“He is a true threat to our democracy,” she said on Tuesday.
Kelly countered that he was just one of many lawyers who advised the Republican party as it searched for ways to change the results of the 2020 election in the weeks and months after it was won by Joe Biden.
Throughout the race, Kelly and outside groups supporting him have regularly highlighted sentencing decisions Protasiewicz made in a handful of cases in which sexual offenders were given little or no prison time. On Tuesday, she said that a few cases were “cherry picked” out of the thousands of sentencing decisions she’s made while serving as a judge in Milwaukee County and when Kelly gave direct quotes, she said she’d like to see the transcripts because “it certainly doesn’t sound like anything I would do.”
In one case, Kelly accused her of not giving a 25-year-old man who got a 15-year-old girl pregnant jail time because of COVID.
The transcripts from the sentencing hearing show that she did say “But for COVID, I would be giving you some House of Correction time.” The transcripts also show that the prosecutor in the case did not recommend a jail or prison term, instead recommending the defendant be placed on probation.
In another case highlighted during the debate, Kelly accused Protasiewicz of telling a defendant, who pleaded guilty to sexually assaulting his cousin, that she saw “good” in him.
Protasiewicz did say there were “a lot of good things” in the defendant’s character, the transcripts show. Yet the transcripts also show she said the offense was “phenomenally serious” and warranted a heftier sentence because of that.
The prosecutor in the case did not recommend a sentence, instead leaving the decision to Protasiewicz, who imposed 14 months of imprisonment and 18 months of extended supervision.
Supreme Court election
The Supreme Court election is set for April 4. Early voting has already begun. Voters can check with their local clerk’s offices for hours and locations.
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