Republicans face the music after their Wisconsin Supreme Court loss

April 11, 2023 5:00 am
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Losing the Wisconsin Supreme Court race by a whopping 11-point margin was a big blow to Republicans, prompting a round of soul-searching and recriminations. The Wall Street Journal called it a “five alarm” warning that the party is losing its grip on the Midwest and could face stiff headwinds in the 2024 presidential election. Former Republican Gov. Scott Walker told Fox News that the defeat of Daniel Kelly — whom Walker himself had appointed for a short stint on the state’s highest court — is a sign that conservatives must redouble their efforts to fight liberal indoctrination in the classroom and on university campuses to win over younger voters (coincidentally, that’s the very effort Walker is paid to lead at the Young America’s Foundation).

Some conservative advocates argue that the race proves that Republicans need to be even more vocal about their anti-abortion views. Others point to softening support among suburban women and suggest dumping Trump and moving away from the hard right is the path to success.

Regardless, in the most gerrymandered state in the nation, you can bet the GOP is not going to give up power easily. 

There’s been a lot of speculation that Republicans could use their new supermajority in the state Senate — the one bright spot for the GOP after an otherwise miserable election night —  to impeach newly elected Supreme Court Justice Janet Protasiewicz. But that’s unlikely since A. Protasiewicz hasn’t been seated and hasn’t even arguably done anything impeachable yet and B. Democratic Gov. Tony Evers could appoint her replacement (just like Walker appointed Kelly to fill an empty seat), so the net result would not advance the conservative cause.

Losing its lock on power is an existential crisis for a party that has been able to run the table, even while losing statewide elections.

Republican legislators and their allies can no longer turn to a conservative majority on the state’s highest court to help them seize powers from Democratic Gov. Tony Evers as they did after he won in 2018. They won’t be able to rely on the court to stick by the “least change” doctrine that conveniently ratified their gerrymandered maps, locking in their control of the Legislature after they changed everything to draw themselves into power. And they won’t be able to count on the conservative majority that very nearly overturned the legitimate vote for President Joe Biden in the 2020 presidential election. 

In a letter to supporters, Rick Esenberg, founder, president and general counsel of the rightwing Wisconsin Institute for Law & Liberty, which is continually bringing cases to the state Supreme Court on behalf of the Republican Legislature, reacted to the news about the new liberal majority by calling for an all-out war against “the progressive left” that now hold the White House, the governor’s mansion and the Wisconsin Supreme Court. “The left has already begun bragging of how they will ‘undo’ Act 10, the congressional district maps, and every other hard-fought win that we achieved in the first place,” Esenberg wrote. “They will start in Wisconsin and go on from here. We cannot let them succeed.”

What choice do conservatives have?

They can take the long and arduous route Walker recommends, trying to persuade more college students that abortion shouldn’t be a right and that climate change isn’t real. Or they can try a more expedient route, fighting like hell to hold onto gerrymandered maps so they can remain in power.

Rather than trying to impeach Protasiewicz, my bet is that Republicans press the current conservative majority on the Wisconsin Supreme Court, perhaps in response to a request for original action from WILL, to make a ruling ratifying the existing gerrymandered map. They might also suddenly get interested in ethics rules. After refusing for years to recuse themselves from cases involving their own campaign contributors, they could pass new rules based on their argument that Protasiewicz, having expressed her support for abortion rights and her belief that Wisconsin’s voting map is “rigged,” must therefore recuse herself from cases involving gerrymandering and abortion.

That won’t get them very far, though, since a new liberal majority can undo the kinds of last-minute deck-stacking efforts the Legislature successfully executed against Evers in the lame duck session. 

At some point, cheating isn’t enough. Having lost the high court, Republicans are facing a perilous moment.

Which brings us back to all those Republican politicos’ pleas to the party to figure out how to do a better job appealing to voters.

When the Republicans talk about losing “everything we’ve worked for” with the change on the Wisconsin Supreme Court, they’re referring mainly to the changes Walker set in motion with his union-busting Act 10, as well as more than a decade of deep cuts to education funding and deregulation of polluting industries. 

The tangible results of Walker’s “divide and conquer” politics are visible everywhere now. 

That bitter legacy was most eloquently described by former UW chancellor John Wiley in a 2015 essay for Madison Magazine in which he described Wisconsin’s decline since he first arrived here four decades ago as a graduate student after living in Indiana and Tennessee. Wiley paints a picture of Wisconsin the way it used to be, when progressive-era investments in infrastructure and a small-d democratic ethos created a state with perfectly maintained highways, tidy farms, city streets and parks free of trash and a well educated workforce. After spending 40 years at the university, Wiley sadly observed, “almost everything that once made Wisconsin seem like a promised land is being systematically stripped away and discarded. That process has been tragically accelerated under Governor Scott Walker.”

Business interests that have been able to buy seats on the Wisconsin Supreme Court “really do want us to become a third-world state, and they are winning,” Wiley wrote.

Investments in public schools and our great university have been slashed, tuition is no longer affordable for families of modest means, including  people like Wiley’s parents. Meanwhile, the median family income in Wisconsin has declined, and with the attack on unions, the route to the middle class has been further barricaded. There is a rundown quality to our state, a meanness exacerbated by “divide and conquer” political rhetoric, and a deep inequality. We are no longer that clean, optimistic land of opportunity that attracted Wiley.

That’s the legacy Walker and his allies worked so hard for. And now it’s threatened, because their vision won’t be protected from voters who don’t like it.

Abortion and gerrymandering were the big topics in the Supreme Court election (along with a big dose of lurid Republican ads about violent crime). Protasiewicz calculated, correctly, that a majority of voters did not agree that conservative triumphs have been good for the state. She has also been an opponent of Walker’s Act 10, having grown up in a union household and seeing what a difference pro-worker policies made for her own family. 

If Protasiewicz and her colleagues are able to rule on fair maps, legislators who play only to their hard-right base could suddenly face a referendum on the whole Walker legacy, the damage it has done and what kind of a state we really want to live in. No wonder they’re so dismayed. 


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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. Conniff is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. Her book "Milked: How an American Crisis Brought Together Midwestern Dairy Farmers and Mexican Workers" won the 2022 Studs and Ida Terkel Award from The New Press.