The four candidates running in Tuesday’s Wisconsin Supreme Court primary (clockwise from upper left): Everett Mitchell, Jennifer Dorow, Daniel Kelly, Janet Protasiewicz. | Official portraits
On Tuesday, voters will head to the polls to decide which two candidates will move on to the general election in the race for an open seat on the Wisconsin Supreme Court.
The primary race, consisting of a four-candidate field made up of two liberals and two conservatives, has involved partisan swiping, an increasing number of negative ads, an unprecedented amount of money and a new style of Supreme Court campaigning in Wisconsin. While it’s possible two candidates from one ideological wing could both make it through the primary, it’s likely that one liberal and conservative will win on Tuesday
That means the winner of the general election will determine the ideological balance of the court, which is currently controlled by conservatives with a narrow 4-3 margin.
That chance to reset the ideological leanings of the body has brought national attention, and money, to the race. The traditionally sleepy spring election for the state court seat could affect national politics, since it’s likely the court will hear challenges to Wisconsin’s gerrymandered political maps as well as the state’s 1849 ban on abortion.
Shortly after the midterm elections last year, Democratic Party of Wisconsin chair Ben Wikler said the race this spring is the most important in the country.
“This might be the most high profile race in the country in the spring of 2023, we’ll have important mayor’s races in Madison, Kenosha, Racine, Green Bay, there will be school board races and school referendums,” Wikler told the Wisconsin Examiner. “But the race will determine the majority of our state’s highest court and determine if a majority vote can elect a majority Legislature for decades to come, the Supreme Court race is electoral ground zero in 2023.”
Waukesha County Circuit Court Judge Jennifer Dorow raised her statewide profile when she presided over the trial of Darrell Brooks, the man convicted of killing six people when he drove his SUV through the Waukesha Christmas parade in 2021. She jumped into the race shortly after the trial ended.
A conservative, Dorow has touted the support she’s received from law enforcement but she’s also been taking criticism from all sides in the primary.
Her conservative opponent, former Supreme Court Justice Dan Kelly, has been attacking her for having a limited history of stating her conservative beliefs. At the forum in January she read answers from a binder as she refused to give much information about her judicial philosophy, giving Kelly an avenue to criticize her for not being prepared enough. He’s repeatedly said he won’t endorse her if she wins on Tuesday.
Meanwhile, the liberals in the race have criticized her for being too radical, highlighting her support from anti-abortion groups.
At a Wispolitics.com event last week, former Republican Assembly Speaker Scott Jensen wondered if the good will and high name recognition she got from the Brooks trial would be enough to outlast the punches she’s been taking from both sides ahead of the primary.
“There’s so much money being spent dragging Dorow down,” Jensen said. “It’s pretty hard to survive a four-to-one negative thing versus positive unless it’s just she struck such a hard chord with the public during that trial that nothing’s going to shake [her]. And I think that’s actually possible here.”
Aside from the criticism of her conservative bonafides, Dorow has also faced scrutiny of her personal life and how that reflects on her judicial tenure. Dan Bice of the Milwaukee Journal Sentinel reported in January that Dorow’s son was allegedly involved in the overdose death of a UW-Milwaukee student in 2021. A Wisconsin Examiner analysis of her record overseeing drug overdose cases found that she frequently advocated for strict punishments and long prison sentences for the people who provide the drugs that ultimately kill someone.
Kelly was appointed to the state Supreme Court in 2016 by former Republican Gov. Scott Walker and served on the court for four years before losing his bid to hold onto his seat in 2020 to liberal Justice Jill Karofsky by a 10 point margin.
A report from the judicial advocacy organization People’s Parity Project Action found Kelly repeatedly decided in favor of businesses, including his own donors, making the court significantly more hospitable to companies charged with doing harm to workers or consumers during his four years as a justice.
Having spent the primary advocating for his brand of “constitutional conservatism” and belief that judicial opinions should stick to the “original public meaning” of the law, Kelly has tried to set himself apart as the only true conservative in the race.
“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.”
Dan Bice recently reported in the Milwaukee Journal Sentinel that Kelly was paid $120,000 by the Republican Party for work on “election integrity” issues, including advising the fake electors who met in secret to cast electoral ballot for Donald Trump after Joe Biden won in Wisconsin.
Kelly’s previous loss to Karofsky, a massive landslide by the standards of Wisconsin’s usually razor thin statewide elections, has outside observers wondering if re-nominating a losing candidate is the right strategy.
Kelly’s attacks on his fellow conservative Dorow have also raised Republican eyebrows after the party’s bruising gubernatorial primary last year.
“This is bowl of popcorn time for Democrats and progressives,” Chuck Chvala, former Democratic Senate Majority Leader, said at the Wispolitics.com event. “Oh my god, you know, just let’s just watch the cat fight continue here. Oh, you’ve got to be kidding, I mean, you’ve got on the one hand coming through the primary, a proven loser, and as others have pointed out, a proven loser by 10 points, Kelly clearly is not going to survive the general election.”
Despite that losing record, Kelly has one advantage. Even though he’s lagged behind some of the other candidates in direct contributions to his campaign, a PAC supported by Illinois billionaire and regular Wisconsin GOP megadonor Richard Uihlein has pledged its support to Kelly. The PAC, Fair Courts America, has promised to spend millions of dollars to get Kelly back on the court.
Dane County Circuit Court Judge Everett Mitchell has worked to bring more empathy and fairness to Dane County’s juvenile and drug courts.
Yet despite a track record that is lauded by Democrats, he’s largely been left behind in a primary campaign that has seen most of the money and institutional support go to his liberal opponent.
Mitchell is in last place in the fundraising arms race that’s already getting started in an election expected to break nationwide spending records. But earlier this month he told the Wisconsin Examiner he believes his campaign has grassroots support that may surprise some people.
Asked repeatedly whether a Black candidate can win statewide, after Lt. Gov Mandela Barnes’ narrow loss to Republican Sen. Ron Johnson last year, Mitchell told the Examiner he finds himself answering the question over and over, but he rejects the premise.
“This idea of how race plays into this … this dog whistle among even our liberal communities, our liberal press, we use this dog whistle to make people afraid, to think it’s a risk,” he says. “No one ever questions my competency, no one ever questions what I’ve done as a judge or my record. They say you should not do it or be afraid to do it because I’m Black — ‘we’re afraid of what the racist ads will look like’ — you shouldn’t be making decisions based on fear, you should be making decisions based on who will be the best judge.”
Asked by a viewer at the Wispolitics event if the support drifting away from Mitchell was a sign of discrimination from white Wisconsin Democrats, Chvala got defensive, saying the question is a sign of a “failure” to grasp the dynamics of the race.
“That’s a major failure for a person to say that. The reality is just what’s on the ground, what’s happening,” Chvala said. “I think Judge Mitchell is a very compassionate and good individual and a good judge. And I think he’s doing everything he can to try to make things better for the people he has come before him. He is in the juvenile court and he does a really good job of trying to make these lives better before they get out there and I respect him and admire that on his part, but the reality is that’s not where the resources are. That’s not where things are happening.”
“There are some issues, some baggage out there that caused some problems,” Chvala added, referring to reporting on details of Mitchell’s divorce. “But,” he said, noting the candidates’ fundraising numbers, “the bottom line is that I think it’s clear from our discussion today that this is a three way race.”
Milwaukee County Circuit Court Judge Janet Protasiewicz, one of the liberals in the race, has emerged as a frontrunner. A massive fundraising advantage and endorsements from high profile Democrats — including liberal Supreme Court Justices Rebecca Dallet and Ann Walsh Bradley — have jolted her to the front of the pack.
That fundraising haul, more than $1 million raised and spent since she announced her candidacy early last year, has allowed her to get on the air early with TV ads — including an ad that played during the Super Bowl earlier this month.
Protasiewicz told the Wisconsin Examiner in December that she got into the race because she believes the current conservative majority on the court has been a rubber stamp for Republicans in the Legislature. And she says she wants to balance that out, without just being the liberal side of the same coin.
“I don’t want to be doing the same thing that I’m accusing the far right of doing, for the other side,” she says. “Independent, fair, the rule of law, the Constitution, the case law that’s been developed, that everybody gets a fair shake, [it’s important] that you don’t come into the Supreme Court and feel like there’s already a thumb on the scale and that you’re not going to get a fair shake.”
Yet throughout the campaign, Protasiewicz has drawn criticism for being open about the “values” she says she holds on major issues that are likely to come before the court. She has defended a woman’s right to an abortion and at a candidate forum in January she said the state’s legislative maps were “rigged.”
“I’d say that in addition to independence, you bring your values to the court every day,” she told the Examiner. “You bring your values, values like your belief in democracy, which kind of leads me in the way that I philosophically think about gerrymandering and the maps. Philosophically, values leading me to believe that a woman’s right to make decisions over her own body should be just that, not made by the government but made by the person who’s ultimately being affected by them. I think on some of those hot button issues, I can certainly tell you what my values are.”
That posture has ruffled feathers across the state. Other candidates have decried what it means for the court when a judicial candidate is openly taking positions on major issues. Outside observers are wary of what that approach means for the nominally nonpartisan highest court.
“It also used to be that people would try to telegraph messages by saying, take a look at the people I have supporting me; that will tell you where I am on these issues,” Jensen said at the Wispolitics.com forum. “And we have now, clearly with Judge Protasiewicz, we’ve now gotten to an era where she’s just going to tell you how she’s going to decide these cases, rather than hinting that I’ve got the support of a pro-choice group or pro-life group or law enforcement or not. I mean, that’s sort of a startling development.”
More information on the candidates can be found here.
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