Candidate photos by Eric Tadsen
On the night of the primary that secured his selection as the conservative on the April 4 ballot for Wisconsin Supreme Court, former Justice Dan Kelly offered some insight into the tone and tenor of the race to come.
“Tonight we join battle in the fight to preserve our constitutional form of government against a novel and grave threat: Janet Protasiewicz’s promise to set aside our law and our Constitution whenever they conflict with her personal ‘values,’” declared Kelly in a statement, referring to his liberal opponent, a Milwaukee County circuit court judge. “Never before has a judicial candidate openly campaigned on the specific intent to set herself above the law, to place her thumb on the scales of justice to ensure the results satisfy her personal interests.”
Kelly accused Protasiewicz of planning to embrace “an ancient form of dishonesty” — prejudging cases — “that has been universally condemned for thousands of years. If we do not resist this assault on our Constitution and our liberties, we will lose the Rule of Law, and will find ourselves saddled with the Rule of Janet. We must not allow this to come to pass.”
What exactly has Protasiewicz (pronounced “pro-tuh-SAY-witz”) done to deserve such castigation? She has said her “values” hold that women should have the right to determine whether to continue or terminate a pregnancy. This belief, shared by a majority of Wisconsin residents, was previously expressed by state Supreme Court candidates Rebecca Dallet and Jill Karofsky, both of whom were subsequently elected, in 2018 and 2020, respectively. (Meanwhile, in 2019, Democratic-backed candidate Lisa Neubauer, who presented as noncommittal on reproductive rights, lost.)
Protasiewicz has also described the maps drawn up by Republicans to ensure their domination of the Legislature as “rigged,” which they quite clearly are.
The audacity of Kelly’s attack is magnified by his own extreme pronouncements and partisan connections. A past president of the Milwaukee Lawyer’s Chapter of the ultraconservative Federalist Society, Kelly has equated affirmative action to slavery, warned that allowing same-sex couples to wed “will eventually rob the institution of marriage of any discernible meaning,” and decried abortion as “a policy that has as its primary purpose harming children.”
Kelly is a graduate of Regent University School of Law, founded by televangelist Pat Robertson. The school’s mission, Kelly wrote in 1991, is “to bring glory to God and His Son, Jesus Christ, through the Holy Spirit,” adding, “We believe that God’s law has something to say about every area of law.”
In 2012, as a lawyer in private practice, Kelly was hired by state Republican lawmakers to defend Wisconsin’s voter maps, said to be the most gerrymandered in the nation. Just prior to the Feb. 21 primary, the Milwaukee Journal Sentinel reported that the Republican Party paid Kelly $120,000 last year for services including advising the fake electors who conspired to declare that Donald Trump and not Joe Biden won in Wisconsin.
“He has some baggage,” reflects Barry Burden, a professor of political science at UW-Madison. “He has clear connections to the Trump campaign, to the Republican Party. He has some extreme positions.”
Protasiewicz topped the four-candidate field by snaring 46.5% of nearly 1 million votes cast, an astonishing turnout for a primary election with no other statewide contests on the ballot. She easily bested fellow liberal Everett Mitchell, a Dane County circuit court judge, who got 7.5%. Kelly, meanwhile, edged past fellow conservative Jennifer Dorow, a Waukesha circuit court judge, getting 24% of the vote compared to her 22%.
Kelly was the conservative whom liberals most wanted to run against, Dorow’s campaign noted, citing a media report that the libs “very much believe that former Justice Daniel Kelly would be the easier conservative to defeat in the spring contest to determine control of the court.”
She’s probably right. While Dorow ran a stealth campaign — ducking questions at appearances and hiding from the press — designed to hide her extreme views, Kelly is on record as supporting the U.S. Supreme Court’s Heller decision striking down the District of Columbia’s handgun ban and gun-safety requirements, and giving his stamp of approval to partisan gerrymandering, saying “a redistricting map is an entirely political act.”
Kelly was appointed to the Supreme Court by Republican Gov. Scott Walker in 2016 but was defeated by liberal Karofsky when he ran for election in 2020. In the current race, Kelly has argued to Republicans that he would be better able than Dorow to attract big money donations from out-of-state interests, saying “they will only support a candidate who has a proven record of constitutional conservatism.”
Illinois billionaires Richard and Elizabeth Uihlein have already pumped at least $2.8 million into the race on Kelly’s behalf — at that’s just before the primary. These contributions could offset Kelly’s relatively anemic fundraising from the public — just $544,727 pre-primary, compared to $2,347,965 raised by Protasiewicz.
Protasiewicz is also drawing in millions of dollars in outside spending. The race has already smashed the record for spending on a Wisconsin Supreme Court election, set at $10 million in 2020, as well as the all-time record for a judicial race in U.S. history, topping the $15 million spent in Illinois in 2004, and there are still more than three weeks to go before Election Day. It’s been estimated that the Wisconsin race could end up costing between $30 million and $40 million.
The usual Republican playbook in dealing with liberal contenders is to portray them as criminal-coddling threats to public safety. But that won’t be easy to do with Protasiewicz, who served 25 years as a Milwaukee County prosecutor before being elected as a judge in 2014.
Alan Ball, a Marquette University history professor who tracks the state Supreme Court, reviewed the 61 criminal cases handled by Judge Protasiewicz that were heard by the Court of Appeals. In each case, the appeal came from the defendant, not the state; in five of these cases, the appellate court agreed with the defense that the ruling or sentence was unfair.
“Judge Protasiewicz almost invariably ruled against defendants in postconviction proceedings, and on the rare occasions when the court of appeals reversed her, the judges found that she should have granted the defendant’s motions,” Ball concluded.
The Milwaukee Journal Sentinel recently wrote that Protasiewicz on three occasions declined prosecutors’ requests that people convicted of harming children received additional prison time, instead of time-already-served and probation. Sam Roecker, her spokesperson, said this amounted to cherry-picking from among thousands of cases, adding “Right-wing special interests are misleading voters because they want to keep an extreme, out-of-touch right-wing majority on the bench.”
Protasiewicz has also aired a campaign ad accusing Kelly of having defended “child molesters posing as youth ministers,” in his former role as a criminal defense attorney.
The concern about crime in campaign messaging is largely concocted. The leading outside funder of conservative state Supreme Court candidates in recent years has been Wisconsin Manufacturers & Commerce, which has aired countless ads raising alarms about crime. Yet crime and public safety are not among the 11 issues of concern on the group’s website or in its 16-page Legislative Agenda.
An analysis by the Wisconsin Examiner found that Kelly regularly sided with businesses interests in his time on the court — so much so that the percentage of cases in which the court’s rulings favored businesses was cut in half after he left.
In one case, Flug v. Labor and Industry Review Commission, Kelly wrote the majority opinion denying disability benefits to a Walmart employee who underwent surgery prompted by a workplace injury that then triggered a preexisting condition. He said deciding for the injured worker “would represent a significant step towards making the Worker’s Compensation system ‘a blanket insurance policy to provide benefits for disabilities which may become manifest while on the job but are in no way caused by or related to the employment.’” That ruling even drew a dissent from then-Chief Justice Patience Roggensack, a reliable conservative vote, who felt the worker was “entitled to compensation.”
But the issue likely to carry the day in the April 4 election is reproductive rights. Wisconsin is now among the 13 states in which abortion has been unattainable since the U.S. Supreme Court overturned Roe v. Wade, after several justices appointed by President Donald Trump swore up and down in their confirmation hearings that they considered the matter to be “settled law.”
Kelly is endorsed by several pro-life groups and has done legal work for one of them.
Further shifting the tide in Protasiewicz’s favor is the fact that advisory referenda affirming reproductive rights will be on the April 4 ballot in three Democratic-leaning counties: Eau Claire, Milwaukee and Dane. The question in Dane County is whether the state constitution should be amended to “protect rights such as abortion, same-sex marriage, and interracial marriage.”
There is no question, really, which way either of Wisconsin’s Supreme Court contenders would answer.
