On the last Saturday in February, just after a winter storm dumped freezing rain, snow, and ice across the Midwest, progressives and Democrats gathered at a café in Madison, Wisconsin, at 9 a.m. for an “ice cream for breakfast” fundraiser for state supreme court candidate Janet Protasiewicz.
If serving ice cream to Wisconsinites on a cold February morning seems like an odd choice, it didn’t discourage anyone in the standing-room-only crowd. In a way, it was an appropriate coals-to-Newcastle metaphor for an event that aimed to raise money for the candidate who has already collected more cash than any other candidate in the history of Wisconsin Supreme Court elections.
Before she won the February 21 primary election, Protasiewicz, a Milwaukee County circuit court judge, raised a record-breaking $2.2 million—much of it from out of state. But the race is about to get even more expensive. After crushing her three opponents, garnering 46 percent of the vote, Protasiewicz now faces conservative former state supreme court justice Daniel Kelly, who finished second with 24 percent. Massive spending is pouring into the race from both sides.
During the primary, outside groups spent $493,250 on advertising to support Protasiewicz. More than five times that—$2.59 million—went to support Kelly. A political action committee supported by GOP megadonor Richard Uihlein, Fair Courts America, has pledged to spend millions of dollars to support Kelly in the April 4 general election.
The race, which The New York Times dubbed “arguably the most important election in America in 2023,” could shift the ideological balance of the court, just before it is likely to hear cases challenging Wisconsin’s draconian 1849 abortion ban and its gerrymandered voting map.
In this fraught political environment, in a purple state perpetually teetering on the tipping point between polarized political forces, the nominally nonpartisan supreme court race has become an openly partisan free-for-all. The candidates are each backed by a political party and opposing interest groups.
Kelly has condemned Protasiewicz for openly stating that she supports abortion rights and for describing the Republican legislature’s gerrymandered political map as “rigged.”
“Politics is poison to the work of the court,” Kelly has proclaimed. But Kelly himself is hardly a nonpartisan actor. He ran his last campaign out of the Wisconsin Republican Party’s headquarters. He represented legislative Republicans in court when they defended their gerrymandered voting maps. And the Milwaukee Journal Sentinel reports 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 ballots for Donald Trump after Joe Biden won Wisconsin in 2020.
In a purple state perpetually teetering on the tipping point between polarized political forces, the nominally nonpartisan supreme court race has become an openly partisan free-for-all.
There’s no doubt in anyone’s mind that the competition for the open seat on the Wisconsin Supreme Court is a hot political race, or that the judges vying for it are politicians in what has become a big-money, high-stakes political campaign. But that’s not the way it’s supposed to be.
The election of state supreme court justices was written into the Wisconsin Constitution back in 1848, with the framers carefully distancing judicial elections from partisan races. “Independent judges safeguard our freedoms by deciding cases on the basis of the facts and law, independent of pressure from outside influences,” Wisconsin’s late Chief Justice Shirley Abrahamson wrote. “An independent judicial system that dispenses justice fairly, impartially, and according to the rule of law is the cornerstone of our democracy.”
But in recent years, the idea of an independent, impartial supreme court in Wisconsin has become a joke. Kelly helped make it that way. According to a report from the advocacy group People’s Parity Project Action, Kelly repeatedly decided in favor of businesses, including those of his own donors, while he was on the bench. That made the court significantly more hospitable to companies charged with doing harm to workers or consumers during his four years as a justice.
At the ice cream fundraiser, Chuck Chvala, a lawyer and Democratic leader of the state senate from 1995 to 2002, shook his head over the partisanship and mind-blowing expense of Wisconsin Supreme Court races. Chvala knows all about the corrupting influence of money in politics. He served a nine-month jail sentence after Wisconsin’s legislative caucus scandal, when he and other lawmakers were found to have illegally used legislative staffers to do campaign work and fundraise on state time. The judiciary should be the one branch of government that’s insulated from partisan politics, he said. “We should not elect supreme court justices.” Chvala thinks justices should be appointed.
He’s not alone. The nonpartisan Election Reformers Network, a group based in Washington, D.C., that works to strengthen democratic institutions around the world, recently released a policy brief stating that the Wisconsin race should “raise the larger question of whether electing state justices makes sense in the first place, particularly in a state as dangerously polarized as Wisconsin.”
In twenty-three states, judicial nominating commissions submit lists of nominees for selection by the governor. “Though no system is completely apolitical, many scholars and good government advocates agree that merit selection is the best option for creating an independent and impartial judiciary,” the brief states. Ideally, a judicial nominating commission should have a nonpartisan chair, and a mandate to choose its own appointee should the governor refuse to pick from its list. The brief also recommends that the commission and its structure should be established in the state constitution so its authority cannot be easily rolled back by a partisan legislature.
None of that will happen right away in Wisconsin. But a citizens’ movement, like the movement for nonpartisan redistricting, could build momentum for a truly independent judiciary. Back when Democrats controlled both houses of the state legislature and the governor’s office in Wisconsin, they missed their chance to establish a nonpartisan commission to draw fair maps. Now the people of Wisconsin are living with the consequences. When it comes to the supreme court, Democrats are engaged in an electoral arms race.
This year, that might work out. But “Democrats need to beware,” says Matthew Rothschild of the Wisconsin Democracy Campaign. “They may be winning right now in the money, but that’s not going to last forever, because there are more rightwing billionaires out there than leftwing billionaires.”
“And in any event,” he adds, “our politics shouldn’t be a tug of war between a handful of super-rich people on the left and a handful of super-rich people on the right. In a well-functioning democracy, we’d all have an equal tug on the rope.”
Progressive voters who attended Protasiewicz’s ice cream fundraiser were in a funny position, rooting for her to win the race, and donating to the cause, while at the same time shaking their heads over the descent of the supreme court into partisan politics. Some also expressed their dismay at how the other progressive candidate in the primary, Everett Mitchell, was shoved aside.
Political establishment types who encouraged Mitchell to run later switched candidates. White liberal voters who said they liked Mitchell—a charismatic judge who makes it his mission to help young people caught up in the criminal justice system—regretfully told me that they didn’t think a Black candidate could win statewide in Wisconsin.
That self-fulfilling prophecy emerged after another Black candidate, former Lieutenant Governor Mandela Barnes, narrowly lost to Republican Senator Ron Johnson in 2022. The state supreme court race was just “too important” to risk, these voters said. (Never mind that Wisconsin chose President Barack Obama twice. Or that a more robust turnout by Black voters in Milwaukee—something Republicans actively worked to suppress—would have given Barnes the single percentage point he needed to beat Johnson.) Strategic overthinking is one more harm to democracy in Wisconsin’s expensive, professional, partisan campaign for the supreme court.
Nevertheless, seeing the ebullient justices Jill Karofsky and Rebecca Dallet celebrating the prospect of a transformational election was uplifting. The progressive women on the court had a sleepover on the night of the primary election, Karofsky said. Their energy, optimism, and the prospect of a pro-woman, pro-voter, progressive majority on the court is game-changing.
“We have a once-in-a-lifetime opportunity to take control of the court,” Karofsky enthused at the ice cream fundraiser. Karofsky herself beat Kelly in 2020 by a solid eleven-point margin, when he ran unsuccessfully to hold onto the seat to which he was appointed by former Republican Governor Scott Walker in 2016. She has good reason to believe Protasiewicz can win.
“Everything that we care about is on the line—everything,” Protasiewicz added. When the fundraiser ended, she announced she was leaving right away to campaign in towns across the state. The crowd burst into cheers.
Turnout in the judicial primary reached its highest level ever. Clearly voters are fired up.