Tommy Washbush
As Ben Wikler sees it, the upcoming vote to fill a vacancy on the state Supreme Court “will be one of the most consequential elections that most Wisconsinites will live through in terms of its impact on everyday life in the state. And it’s also the most important race in the country before the 2024 presidential race.”
Wikler, the chairman of the state Democratic Party, notes that it’s not just the future of reproductive rights in Wisconsin that hangs in the balance of the Feb. 21 primary and April 4 general election. The outcome will also determine whether the state’s political maps will continue to be massaged to favor Republicans, and have huge implications for the fights that are certain to emerge over the rules for and results of the 2024 election.
“We saw Trump come hold-your-breath-close to overturning the [2020] election results, due to the judicial activism on our state Supreme Court,” Wikler says. “We’ve seen our Supreme Court side with a gerrymandered Legislature and move power away from the person who won the majority of votes in the statewide election and hand it to the Republican state Legislature.”
The Wisconsin Supreme Court rejected President Donald Trump’s attempt to steal the state’s 2020 election on a 4-3 vote. Only one conservative, Brian Hagedorn, broke ranks by siding with the liberals, for which he got holy hell. There’s no telling whether he would break ranks again, if conservatives retain the majority. Last July, Hagedorn sided with his fellow justices in rejecting the use of ballot drop boxes and making it illegal to assist others in delivering their absentee ballots. The ruling was decried by disability rights activists and drew a rebuke from liberal Justice Ann Walsh Bradley, who wrote in dissent that it “fans the flames of electoral doubt that threaten our democracy.”
In another recent 4-3 ruling, involving public records, the court’s conservative majority, without anyone asking it to do so, decided that requesters who file lawsuits in response to record denials can recover their attorneys fees and costs only if a judge rules in their favor. Previously, it was understood that these fees could be recovered even in cases where a judge never rules, if the records are provided only after a lawsuit is filed. Liberal Justice Jill Karofsky, writing in dissent, warned that this “deleterious new standard for attorney fees may disincentivize government actors from making timely disclosures, eviscerating the very purpose of the public records laws.”
The decision, written by Hagedorn, was so wrongheaded that the deeply conservative but admirably pro-transparency-in-government Wisconsin Institute for Law & Liberty (WILL) is seeking legislative action to undo the potential harm. [Note: This effort is supported by the Wisconsin Freedom of Information Council, on which I serve as president.] It’s a textbook example of court conservatives legislating from the bench, which they all promise to never do.
The court’s conservative majority, which besides Hagedorn includes Annette Ziegler, Rebecca Bradley and Patience Roggensack, is uniformly hostile to the rights of criminal defendants, supportive of the power of corporations, deeply anti-choice, death on any sort of gun reform, and open to intensely partisan redistricting and politically motivated tinkering with the electoral process.
But now, Roggensack’s retirement after two 10-year terms throws open the possibility that the court, come this August, could have a liberal majority for the first time in decades. The court’s current liberal minority consists of Karofsky, Ann Walsh Bradley and Rebecca Dallet.
Conversely, conservatives and their Republican backers now have a chance to secure control of the court at least until 2026, barring a mid-term resignation or death.
Four candidates are in the race: Milwaukee Circuit Court Judge Janet Protasiewicz and Dane County Circuit Court Judge Everett Mitchell, both backed by liberals; and former Justice Dan Kelly and Waukesha Circuit Court Judge Jennifer Dorow, both conservatives. The Feb. 21 primary will narrow the field to two candidates for the April 4 general election.
The question of the court’s ideological balance could be settled in the primary, if both of the top two vote-getters are either conservative or liberal. This could happen if the two candidates on both sides receive similar vote totals. A conservative commentator recently mused, “There is a very real possibility the two Liberals could advance to the general election. Scarry [sic], right?” He urged Kelly to withdraw. Kelly, like the other contenders, is not going to do that.
Going to extremes
The differences between the two sides seeking election to the Supreme Court, conservative and liberal, are stark. Those between the two candidates on either side are not.
Kelly and Dorow are both hardcore religious conservatives backed by pro-life groups. Both graduated from Regent University Law School in Virginia, founded by televangelist Pat Robertson. Both were appointed by Republican Gov. Scott Walker — Kelly to the Supreme Court in 2016, Dorow to the Waukesha County bench in 2011. Dorow then won election in 2012 and 2018, both times unopposed. Kelly lost his one prior bid for election, to Karofsky, in 2020.
Kelly is a past president of the Milwaukee Lawyer’s Chapter of the Federalist Society, a far-right legal advocacy group which counts all six conservatives on the U.S. Supreme Court as current or former members. Dorow does not appear to be a member; her campaign ignored my repeated attempts, through its website and by phone, to ask questions for this article.
As in 2020, Kelly claims his personal beliefs about anything are irrelevant. It’s a smart stance for him to take, given how extreme his views seem to be.
In his application to Walker for the open Supreme Court seat, Kelly included a chapter he had written for the 2014 book, John Rawls and Christian Social Engagement: Justice as Unfairness. In it, Kelly likens affirmative action to slavery (“morally, and as a matter of law, they are the same”) and frets that allowing same-sex couples to wed “will eventually rob the institution of marriage of any discernible meaning.”
In blog posts he wrote between 2012 and 2015, Kelly called President Obama’s 2012 reelection a victory for “the socialism/same-sex marriage/recreational marijuana/tax increase crowd”; expressed support for the U.S. Supreme Court’s Citizens United decision, which unleashed corporate and big-money-donor spending in elections; and decried legal abortion as “a policy that has as its primary purpose harming children.”
Kelly does a much better job asserting his judicial independence than he does at proving it. During his four years on the court, according to my analysis of data collected by Marquette history professor Alan Ball, Kelly voted in sync with the court’s other conservatives on non-unanimous cases an average of 74 percent of the time, compared to 26 percent of the time with the court’s liberals.
Asked at a Jan. 9 candidate forum in Madison sponsored by WisPolitics.com to give an example of a case that “shows you’ll be an independent thinker on the court,” Kelly said, “I have been told that some of the opinions that I’ve written on the court have not been the favorite of those who might be considered otherwise to be my supporters.” He later made an equally oblique reference to being “raked over the coals, sometimes by the left, sometimes by the right.” Kelly did not give specifics. His campaign spokesperson, Jim Dick, checked in with the former justice at my behest and replied, “The particular case Justice Kelly was thinking of at the time was SEIU v. Vos.”
In this case, the labor union SEIU sued over “lame duck” legislation passed by legislative Republicans following the 2018 election to strip power from the offices of governor and attorney general, after Tony Evers and Josh Kaul, respectively, were elected to these posts. Kelly voted to affirm nearly every component of this legislative power grab. But he also wrote a separate decision, which all seven members of the court agreed with at least in part, holding that the Legislature had gone too far in undercutting the ability of agencies to issue guidance documents. A display of trail-blazing independence, it’s not.
While proclaiming that “politics is poison to the work of the court,” Kelly, on his campaign website, highlights politically charged cases, including his votes with other conservatives to torpedo the city of Madison’s attempt to limit concealed carry rights, shut down Gov. Tony Evers’ “Stay at Home” order during the COVID-19 pandemic, and block “unelected bureaucrats in Madison...from exercising power that did not belong to them” in a taxation case.
At the candidate forum, Kelly declared his support for the U.S. Supreme Court’s Heller decision, which struck down the District of Columbia’s handgun ban and gun-safety requirements. He also pretty much gave his blessing to partisan gerrymandering, saying: “A redistricting map is an entirely political act. It involves political calculation. It involves communities of interest. It involves give and take. It involves compromise. It involves the political process. It is political, from start to end.” (In 2012, as a lawyer in private practice, Kelly was hired by state Republicans lawmakers to defend the voter maps they drew up in secret to maximize their advantage.)
There is every reason to believe Jennifer Dorow is as extreme as Kelly, if not more so, and even more political. She is just far less forthcoming about it.
Stealth campaign
Dorow belongs to the Republican Party of Waukesha County and has worked on a number of GOP candidate campaigns. In her 2011 application to Walker for a judgeship, she identified the U.S. Supreme Court’s 2013 ruling in Lawrence v. Texas as “one of the worst United States or Wisconsin Supreme Court opinions in the last 30 years.”
The case concerned a Texas man who was arrested and charged after police responding to a bogus call entered his unlocked apartment and found him having consensual sexual relations with another adult male. Dorow called the court’s 6-3 ruling which struck down that state’s sodomy laws, “a prime example of judicial activisim [sic] at its worst,” claiming it “went well beyond the four corners of the U.S. Constitution to declare a new constitutional right.”
Dorow lamented that this right — of consenting adults to engage in private sexual behavior without being hauled off to jail — was later used “as legal justification in mandating the issuance of same sex marriage licenses” in Massachusetts.
Asked during the candidate forum whether she still considered Lawrence the worst opinion in decades, Dorow dodged the question entirely.
Dorow, in her application, identified a Wisconsin case, Ozanne v. Fitzgerald, as an example of one of the best opinions in recent years. Here the Wisconsin Supreme Court’s conservative majority decided that it didn’t matter if Republican lawmakers violated the state’s open meetings law in passing Gov. Walker’s union-busting Act 10. Its ruling said the judicial branch lacked the authority to tell the legislative branch what to do, effectively ending the need for the Legislature to obey the open meetings law.
Dorow’s application also revealed, without providing specifics, that she was once “sanctioned for citing unpublished cases by the Court of Appeals.” What was the sanction and how egregious was the offense? Dorow’s campaign is not talking.
It appears that Dorow intends to run an under-the-radar stealth campaign in which she lets commercials and outside money do most of the talking. Her centerpiece achievement is her handling of the recent trial and conviction of the perpetrator of the 2021 Waukesha Christmas Parade attack, which left six people dead and dozens wounded. As she told the audience at the forum:
“I was deeply touched by the feedback that I got from around the world for how I handled that case. I heard from judges across the country, and even inmates who sent letters praising my efforts to be fair and impartial in the face of extreme disrespect, disruption, and at times, even vile behavior. Through it all, I protected the very rights of the person who engaged in this behavior, while ensuring that the rights of the victims and the witnesses are also protected.”
Dorow’s campaign manager, Amber Schroeder, boasted to reporters prior to this forum about the “notoriety” Dorow had acquired. Schroeder is vice chair of the Ozaukee County chapter of Moms for Liberty, a conservative group “dedicated to the survival of America by unifying, educating and empowering parents to defend their parental rights at all levels of government.”
Kelly, for his part, has said this about Dorow’s role in the trial of the Christmas Parade killer: “I’m struggling to think of any other reason that she would believe she would be a qualified candidate for the Supreme Court.”
Oh, snap.
Skeletons in the closet
Like their conservative counterparts, Everett Mitchell and Janet Protasiewicz have much in common. Both are circuit court judges who were elected and reelected to the job, always unopposed. Both proclaim their support for reproductive rights and lambast the U.S. Supreme Court’s Dobbs decision ending constitutional protection for abortion as the worst in recent years. Both vow to bring an enlightened approach to the job.
“Everything we care about, and I mean everything, is going to be on the ballot in this race,” Protasiewicz told the Dane County Democratic Party in an appearance with Mitchell last month. Gerrymandering. Reproductive choice. Election rules.
Protasiewicz (pronounced “Pro-tuh-SAY-witz”) justifiably touts herself as the candidate with the most experience, having worked for a quarter-century as a prosecutor in Milwaukee before her nearly nine years as a judge. She declares that the current maps used to draw voter boundaries are “rigged.” She has embraced the label of “progressive,” an open pit of horror to the right, while at the same time supporting Republican-led efforts to expand the ability of judges to deny bail to unconvicted defendants who are deemed dangerous, as do all three of her high court rivals.
Protasiewicz leads the pack in fundraising, with about $750,000 raised through the end of last year. But this is likely to be a drop in the bucket compared to what outside interest groups will be pouring into the race.
Mitchell, a Baptist pastor, touts his credentials as a reformer, noting that he ended the routine use of restraints and handcuffs during court appearances by juvenile defendants and how, as a minister, he presided over the wedding of a lesbian couple “even before the [U.S.] Supreme Court gave us cover to do so.” Mitchell, more than any other candidate, sees the need for justices to advocate for improvements in the justice system.
All four contenders have vulnerabilities. Kelly has his extremist writings and record of working for and siding with Republicans on hot-button issues. Dorow recently gave a man convicted of assaulting his wife two days to report to jail — time he allegedly used to attack and stab his wife’s parents, for which he’s been charged with attempted murder. And Protasiewicz has made many hundreds of decisions available for second-guessing, including a case recently unearthed by a conservative news outlet about a defendant who got an arguably light sentence for child enticement and third-degree sexual assault and later was arrested for being a felon in possession of a firearm.
But Mitchell may lead the pack in terms of the number of skeletons that, fairly or not, will be dragged from his closet. He led a crowd in chanting “No justice, no peace, no racist police” at a 2020 protest following the police murder of George Floyd. He remarked at a 2015 forum that he didn’t think “people who steal from Wal-Mart” should be criminally prosecuted for shoplifting. In 2020, he reduced the bail of a man charged with sexual assault from $30,000 to $2,000, after which the man committed another sexual assault and a pair of robberies.
And in a 2010 custody battle, Mitchell’s ex-wife accused him of “emotional and eventually physical abuse” and revealed that she had reported to police that he had sex with her after she’d taken a sleeping pill. No charges were filed, Mitchell denies any abuse, and his ex-wife has asked that the matter be dropped. At a candidate appearance in Madison, Mitchell declared, “I know my left-leaning opponent’s team leaked that to the press.” Protasiewicz’s campaign denies this.
At this event, Mitchell addressed the concern that he’ll suffer a fate similar to that of Mandela Barnes, the former state lieutenant governor who ran for Senate against Ron Johnson only to be defeated amid a torrent of ads portraying him as a scary Black guy who liked crime: “Just because Mandela didn’t win [doesn’t] mean I can’t win.” He also told the audience, perhaps a bit too rosily: “Wisconsin, let me tell you, is not a racist state.... The fact that you have negative racist ads that dissuade people doesn’t make the state racist. It makes the process racist.”
What’s at stake
Both sides see this contest as among the most important in decades. Spending by outside groups is likely to shatter the previous record of $5 million in the 2020 race between Kelly and Karofsky — unless one or the other side has the two highest primary vote-getters, in which case, who cares?
As usual, the officially nonpartisan race will be driven by partisans.
Kelly’s campaign is buoyed by right-wing billionaire couple Richard and Elizabeth Uihlein. They fund a PAC called Fair Courts America, whose mission statement declares “our nation’s most significant threats are twofold: internally — the elite, Marxist neo-liberals and, externally — Communist China.” The group says it is “committed to spending millions of dollars to help educate voters in support of Justice Dan Kelly.”
Wikler says the Democratic Party is doing everything it can to get out the vote for both the primary and the general election, from airing ads, to running “door-to-door organizing in every corner of the state,” to making sure Democrats “spread the word, person to person and through social media, [using] whatever screens people might be looking at” of what’s at stake in this race.
He expects to have a lot of company: “Honestly, I’d be surprised if any major group that has been active over the last few years doesn’t jump in, and that’s on both sides.”
While acknowledging that close races raise the possibility the court’s ideological balance could be decided in the primary, Wikler says the party will not be taking sides between “the two non-Republican candidates,” Protasiewicz and Mitchell. He adds that “Anyone concerned about a conservative-versus-conservative general election should come out to vote on Feb. 21, and encourage everyone they know to do the same thing.”
A massive Democratic turnout in the primary could clinch the race for liberals — or at least prevent two conservatives from coming out on top.
In a state that does not allow ballot initiatives, Wikler says, “this Supreme Court race is as close as we’ll get to having a statewide referendum on abortion rights.” Ditto with the issues of gerrymandering and partisan election tinkering.
“If Republicans continue to hold the majority on the Supreme Court, they will essentially prevent the majority of Wisconsinites from being able to choose which party should have the majority in our state Legislature, which gives Republicans an effective veto on any democratic ideas from becoming law,” he says. “But if a judge who’s not simply carrying water for the ultra-MAGA faction of the Republican Party is elected to our state Supreme Court, then we could actually have jurisprudence based on the law in our state constitution, which could lead to the gerrymandered maps being declared unconstitutional.”
So yeah, the stakes are high in this election. Both of them.
The candidates
Eric Tadsen
Janet Protasiewicz
Milwaukee County circuit court judge, elected in 2014 and 2020, both times unopposed. Lives in the city of Franklin in Milwaukee County, 60; married to Gregory Sell, a tax attorney. Has a law degree from Marquette University. Worked as a Milwaukee County assistant district attorney for 26 years. The first to enter the race, Protasiewicz is endorsed by court incumbent Rebecca Dallet, more than 100 current and former judges, and a raft of elected officials and community leaders. She says she is running because “I could not sit back and watch extreme right-wing partisans hijack our Supreme Court.”
Eric Tadsen
Everett Mitchell
Dane County circuit court judge, elected in 2016 and again last year, both times unopposed. He presides over the court’s juvenile division and also oversees Dane County’s High Risk Drug Court Program. Lives in Sun Prairie, 45, married with two children. Graduate of University of Wisconsin Law School, where he now teaches. Pastor at Christ the Solid Rock Baptist Church. Mitchell’s endorsements include former Democratic Gov. Jim Doyle and former state Supreme Court Justice Louis Butler. He calls for the court to serve as “an instrument of balance and justice rather than partisan divide.”
Eric Tadsen
Dan Kelly
Former state Supreme Court justice appointed to the court in 2016 by then-Gov. Scott Walker and defeated by challenger Jill Karofsky in 2020. Lives in the village of North Prairie in Waukesha County; will turn 59 in late February; married with five children. Graduate of Virginia’s Regent University Law School, founded by televangelist Pat Robertson. Has worked as a litigator and held a leadership role with the Federalist Society; in recent years has been a senior fellow with the Institute for Reforming Government, a conservative think tank. Received an endorsement from Donald Trump in his 2020 race.
Eric Tadsen
Jennifer Dorow
Waukesha County circuit court judge appointed by Gov. Walker in 2011 and elected without opposition in 2012 and 2018. Age 52, married, two children; husband Brian ran unsuccessfully for a state Senate seat. Lives in the village of Hartland in Waukesha County. Graduated from Regent University Law School, same as Kelly. Presided over high-profile trial of Waukesha Christmas Parade attack. Longtime member of the Republican Party of Waukesha County. Endorsed by Justice Patience Roggensack (who did not endorse Kelly when he ran in 2020) as well as by a number of sheriffs and police associations.
[Editor's note: This story has been updated with the correct reelection date for Janet Protasiewicz; it was 2020, not 2022.]
