Currently, judicial conservatives enjoy a 4-3 majority on Wisconsin’s elected supreme court. Justice Patience Roggensack, a judicial conservative, is not seeking reelection, creating a vacancy which will decide control of the court. The race will be hotly contested, attracting a significant amount of attention.
The four candidates for the open seat on the Wisconsin Supreme Court met for a candidate forum on January 9 (video). The event was hosted by the WisPolitics news agency and sponsored by the State Bar of Wisconsin and the Wisconsin Institute for Law and Liberty. The discussion was moderated by WisPolitics editor JR Ross and CBS 58 reporter Emilee Fannon.
Each candidate was given time to make an opening statement and to respond to the moderators’ questions; it was not a debate and there was little direct engagement among the candidates. The questions covered topics including judicial philosophy, independence and impartiality, recusal standards based on contributions to a judge’s campaign, redistricting, and voting rights.
Waukesha County Judge Jennifer Dorow highlighted the breadth of her career experience as a prosecutor, defense attorney, and judge, as well as the dozens of endorsements she has received from county sheriffs and local police associations. She later discussed her experience presiding over the trial of the 2021 Waukesha Christmas parade attack, an incident that brought her national publicity, as a demonstration of her ability to be an effective, fair, and impartial judge. Many of Dorow’s responses focused on her philosophy of dutifully applying the law to the facts of a particular case without referring to politics or personal biases. She repeatedly declined to offer an opinion on whether particular cases were correct or incorrect and did not indicate how she would rule in response to questions about topics such as gerrymandering and voting rights.
In his opening statement, former Justice Daniel Kelly focused on his judicial philosophy of understanding and applying the original public meaning of the Constitution, preserving the rule of law, and preventing politics from interfering with the work of the judiciary. When discussing judicial independence, Kelly said that judges must have a method for ensuring that their conclusions accord with the law while setting aside their own personal beliefs. Kelly later said that he was most proud of authoring the Wisconsin Supreme Court’s 2018 decision in Tetra Tech v. DOR, which ended the doctrine of judicial deference to state agencies’ interpretations of their own governing statutes.
Dane County Judge Everett Mitchell highlighted his experience as a juvenile court judge and a former prosecutor, as well as his social justice work with community leaders and faith groups. He said that as a judge, he has tried to be “tough but fair” while also trying to prevent young people from committing crimes in the first place. Later, Mitchell said that he “realized how unfair the system is when I took the bench,” that his courtroom “is a place for everyone’s voice,” and that “bringing politics into it puts our system at risk.” When asked which ruling most shaped his judicial philosophy, he pointed to Brown v. Board of Education, saying the case showed him how the law can be used to oppress and demean people but can also be a force for good. Mitchell said he was inspired by Justice Thurgood Marshall’s opinion in Brown and how passionately the justice advocated for integration.
In her opening statement, Milwaukee County Judge Janet Protasiewicz said that she is running to “bring change and common sense back to our supreme court” and that “I could not sit back and watch extreme right-wing partisans hijack” the court. She also talked about her time as a judge handling violent cases and working to keep Milwaukee safe. Later, Protasiewicz referred to the U.S. Supreme Court’s Dobbs decision overturning Roe v. Wade as the “epitome of judicial activism” and the worst court decision of the last 30 years (a view shared by Mitchell). She discussed the Constitution as a “living, breathing document” and referred to Brown v. Board of Education overturning Plessy v. Ferguson as an example of this.
Perhaps the most interesting moments of the forum came when the moderators asked about how the Wisconsin Supreme Court was involved in the state’s latest round of redistricting, including the court’s adoption of a “least change” approach and the legality of using race as a factor in drawing political boundaries.
Protasiewicz answered first, saying that the maps authored by legislative Republicans are “rigged” and “don’t represent the people of this state.” She argued that there is no basis in the statutes or case law for a “least change” approach and that the method disadvantages voters in population centers. She concluded that she couldn’t promise to rule a certain way on future cases, but that “my values and common sense say the maps are wrong.” Mitchell did not comment directly on the politics of redistricting but said that judges are forced to answer questions about topics like gerrymandering because “democracy is no longer working” and that judges should ensure districts are drawn in a fair, nonpartisan way.
Kelly commented that “when someone tells you what their values are in response to a legal question, they are telling you how they will decide the case.” He said that redistricting is generally a political question and the court’s proper role is confined to evaluating legal requirements such as proportional representation. Dorow also referred to redistricting as a political process, saying she would not “pre-judge” any topic given the possibility of future cases coming before her, promising instead to listen carefully to legal arguments and apply the law to the facts of the case at hand.
The spring primary is February 21, 2023. The top two vote getters in the spring primary will advance to the general election on April 4, 2023.