Wisconsin Supreme Court candidates Janet Protasiewicz and Daniel Kelly debate on March 21, 2023.
Wisconsin Supreme Court candidates Janet Protasiewicz, left, and Dan Kelly, sparred March 21 in the only debate before the April 4 election.
Throughout much of the first and likely only candidate debate leading up to the April 4 election for a pivotal seat on the Wisconsin Supreme Court, the conservative candidate, Dan Kelly, was a fount of grievance, alternately lashing out at his liberal rival, Janet Protasiewicz, and bemoaning the slings and arrows of outrageous criticism that she has brought to bear against him.
“It’s been apparent every time you speak about me,” Kelly scolded Protasiewicz in the debate Tuesday, sponsored by News 3 Now, WisPolitics and the State Bar of Wisconsin. “It’s just full of deceit and dishonesty. And I call on you to do better.”
Kelly is a former state Supreme Court justice who was appointed by Republican Gov. Scott Walker in 2016 and who ran his unsuccessful 2020 campaign for election out of the state Republican Party’s headquarters. Yet he portrayed the support he has received from political and ideological partisans as entirely benign, while hers were deeply corrupt.
“Now, I understand my opponent has been accepting millions of dollars from the Democratic Party,” Kelly intoned. “And I think that presents a major problem going forward. If she were to be elected to the Supreme Court, she would forever afterwards be known as being bought and paid for by the Democratic Party in Wisconsin.”
Protasiewicz has promised to recuse herself from cases involving the Democratic Party. Kelly has not vowed to recuse from any case, including those involving the Republican Party, which employed him to do legal work as recently as December. This included consulting with the GOP operatives who tried to steal the election in Wisconsin for Trump by coming up with a slate of fake electors.
“I am running against probably one of the most extreme partisan characters in the history of the state,” Protasiewicz said. “He is a true threat to our democracy.”
Protasiewicz, who served a quarter century as a Milwaukee County prosecutor before being elected in 2014 as a Milwaukee County circuit court judge, said during the debate that she has been clear in her support for reproductive rights. Kelly attacked her for this, saying the support Protasiewicz has received from supporters of reproductive rights proves she will not be impartial regarding Wisconsin’s 1849 law, which ended access to legal abortion in Wisconsin after Roe v. Wade was overturned. The next court will likely decide a legal challenge to that ban.
“Planned Parenthood and EMILY’s List have endorsed you in this race and they clearly expect, if elected, you would vote to overturn the law,” Kelly stated. “Why would they be spending so much money on your behalf, unless they expect you to strike down that ban?”
Protasiewicz, in reply, said “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.” She continued: “EMILY’s List has endorsed me, Planned Parenthood has endorsed me. I’m not aware of any campaign contribution from either of those entities. But…if my opponent is elected, I can tell you with 100 percent certainty that the 1849 abortion ban will stay.”
This enraged Kelly, who insisted that the support he has received from anti-abortion groups, including Pro-Life Wisconsin and Wisconsin Right to Life, give no indication whatsoever as to how he would rule on this issue.
“The endorsements that I’ve received are entirely because of conversations that I have with individuals and organizations, in which they asked me what kind of 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.” He said the last three words as if each were its own sentence: All. You. Do.
Protasiewicz shot back, saying all anyone needed to do was look at the Wisconsin Right to Life website page that includes Kelly's photo and notes its endorsement of his candidacy under the words: “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 candidates also clashed on the accusations each has made in their campaign ads, primarily on TV ads in what is already by far the most expensive judicial election in the nation’s history. Protasiewicz blasted the ads highlighting cases in which she allegedly gave light sentences, saying she has sentenced thousands of people and that “a handful of cases have been cherry-picked and selected and twisted and insufficient facts have been provided to the electorate.”
Kelly scoffed at this, saying the cases were “representative” of her sentences as a whole. As previously reported in Isthmus, there is some evidence to the contrary. A review by Marquette University history professor Alan Ball found that all 61 criminal cases in which Protasiewicz’s rulings or sentences were heard by the Court of Appeals were brought by the defense, never the prosecution, and that, in five of these cases, the appellate court ruled in favor of the defendants. If anything, the record suggests that Protasiewicz has been too tough on defendants.
Will Kenneally of Channel 3, one of the three journalists on the panel, quizzed Protasiewicz about her ads faulting Kelly for representing a “monster” who was convicted of sexually molesting children. She responded that the purpose of this ad was to counter “the hypocrisy of my opponent” in going after her record on crime. “So when a person is doing that, certainly I am going to respond and point out that he has represented some very, very dangerous people.”
Kelly, in response, went for the jugular: “Thank you for your frankness. I appreciate that. So what you’re telling the state of Wisconsin is that when I tell people about what you’ve actually done — the sentences that are a matter of public record that they can look up — that your response to that is to lie about me, to slander me, and not only slander me, but slander all attorneys who handle criminal defense cases. What you’re telling all the people of Wisconsin is that you believe criminal defense attorneys only take the cases because they like the crimes their clients were accused of committing.”
Protasiewicz insisted she has “a strong respect for the criminal defense bar,” pointing out that she has a good friend and even a campaign treasurer who are criminal defense attorneys. “But don’t go around slamming someone on community safety when you have defended people that most of the people in this community think should be incarcerated.”
Another area of contention was legislative redistricting, the process through which voter boundaries are redrawn, often to partisan advantage. Kelly argued that redistricting was an almost entirely political endeavor that must be performed within certain legal requirements. “So you address the legal questions that lead to the maps but leave the political questions to the Legislature.” Translation: The system works fine just as it is.
Protasiewicz pushed back, arguing that, as a matter of demonstrable fact, the methodology used by the Legislature “is totally unfair. We are a battleground state. We have very, very close statewide elections. Yet if you look at our state Assembly, if you look at our state Senate, two thirds of the seats are red. You look at Congress, you know, we have eight seats, six are red, two are blue.” She said the state was supposed to be a “representative democracy” in which everyone’s vote counted, but that was not happening under the current system.
Kelly pounced on this as proof positive of how unfit Protasiewicz is for the job. “All right, this is the picture that you want to see. She has just told you that she’s going to steal the legislative authority and use that in the courts,” he asserted. “She’s going to take that authority that does not belong to her, that the people of Wisconsin did not give to the judiciary, and she’s going to use that to usurp the role of the Legislature.”
The two candidates did agree in their support for a change in the state Constitution, also on the April 4 ballot, to give judges more authority to set high bail for accused criminals who have not yet had their day in court but who are deemed to be a danger to the public. Protasiewicz said she would even go a step further and “allow in certain cases for extremely dangerous offenders to be held in custody without even being able to post bail.”
Finally, the two candidates agreed that state Supreme Court justices ought to be elected, not appointed, as some have urged. Protasiewicz cited the insight she has gleaned from having traveled all over the state talking to people about the court. Kelly supported the election of judges for this reason: “We are servants. You all are the bosses. I like the idea that the servants need to come back regularly to their bosses and give a report on what they’ve done with the authority that they were loaned.”
On Apri1 4, voters will get to pick which loaner they want. The choice could hardly be starker.
