What to Watch for in a Consequential Judicial Election in Wisconsin End-shutdown

BELOIT, Wisdom. It’s funny about American politics that, for one night, the nation’s biggest campaign of 2023 descended on Cheezhead Brewing, a tavern where some 50 Republicans gathered to discuss the Wisconsin Supreme Court race.

Standing in front of a Green Bay Packers logo made of green, gold and white bottle caps, Jennifer Dorow, a Waukesha County judge who is one of two conservatives running in Tuesday’s four-way primary, he told the crowd Sunday night that “fairness and fairness are squarely on the ballot in this election.”

The meaning of justice and impartiality, however, depends entirely on one’s political leanings.

Democrats say the Wisconsin Supreme Court, controlled by conservatives since 2008, has enacted unfair legislative maps that have allowed Republicans to seize near-majority control of the state Assembly and Senate in an evenly divided state, making almost everything the state legislature does is unfair. The leading Liberal candidate in the race, Janet Protasiewicz, a Milwaukee County judge, calls the maps “rigged” and has said she would vote to throw them out.

For conservatives like Judge Dorow, publicly telegraphing one’s intentions in court and pre-trialing cases are violations of the judicial oath.

But few in Wisconsin are fooled by the stakes in this officially nonpartisan race for a vacant seat on the seven-member court. If a liberal candidate wins a 10-year term, the court will tilt in favor of the liberals and the state is likely to scrap its 1849 law that banned abortion in almost all cases and redraw its legislative maps. If a conservative wins, abortion will remain illegal and Republicans will retain control of the legislature for at least another decade.

The top two candidates from Tuesday’s primaries will advance to the April 4 general election. As voters cast their ballots, this is what happens in the race.

Last fall, the Wisconsin Republican establishment rallied behind Daniel Kelly, a former Supreme Court justice who, in 2020, lost a re-election bid, only the second session of justice to do it since 1958.

But rumors soon surfaced on the right about Judge Kelly’s ability to win. He lost that 2020 race by 10 percentage points, a huge margin in battleground Wisconsin, where a three-point win in a state race constitutes a blowout.

Around the same time, Judge Dorow was presiding over the most high-profile local court case in years: the murder trial of a man ultimately convicted of killing six people while driving during a 2021 Christmas parade. He was on the news every night for weeks.

There hasn’t been a Wisconsin Supreme Court race with multiple conservative candidates since the turn of the millennium, and Justice Kelly’s allies were determined to avoid one.

“I personally called Jennifer before she entered the race and begged her not to participate,” Shelley Grogan, an appeals court judge serving as Kelly’s surrogate, told the Cheezhead Brewing audience. “It is very difficult for her to win a conservative. So if there’s more than one person interested, they sit down and talk about it and decide who we can get behind.”

(In a later interview, Justice Grogan said she was interested in running for the State Supreme Court in the future. A liberal justice’s term ends in 2025, and a conservative judge’s will expire in 2026.)

Judge Dorow told the audience that she would not wait her turn.

“I don’t believe in deciding candidates in a back room,” he said. “I think it’s important that the voters of the state of Wisconsin do that..”

When the Wisconsin Supreme Court ruled, in a series of 4-3 votes, to uphold Joseph R. Biden Jr.’s 2020 victory in Wisconsin, it was a conservative justice, Brian Hagedorn, who provided the key vote to reject the president. Donald J. Trump’s argument to invalidate 200,000 votes.

Those decisions have energized Democrats, who are about to pour tens of millions of dollars behind Judge Protasiewicz (pronounced pro-tuh-SAY-witz). But they have also encouraged Judge Kelly, who has repeatedly accused Judge Dorow of being the second coming of Judge Hagedorn, some kind of unreliable Trojan horse who would double-cross Republicans when necessary.

Judge Kelly, who The Milwaukee Journal Sentinel revealed last week has been paid for two years by the Republican National Committee to work on “election integrity issues”, has repeatedly linked Judge Dorow to Judge Hagedorn. In addition to voting against Mr. Trump’s efforts to nullify the election, Judge Hagedorn has sided with several of the governor’s pandemic mitigation efforts. Tony Evers, Democrat, in 2020. Justice Hagedorn has been a reliable conservative vote on most issues, including redistricting, but many on the right have not forgiven him for challenging Trump.

“I’m pretty much in the same place that I was with Brian Hagedorn, all I have is what she says about herself,” Judge Kelly said at a meeting of Republicans Monday night in Sheboygan. “Jennifer may well be a court conservator, she could be, I just don’t know because there’s nothing to tell me that she is.”

Judge Hagedorn, in an email, said he was “not interested in commenting at this time.”

Judge Kelly’s defeat in 2020 is the feature that animates Judge Dorow’s campaign.

“I am the only conservative who can win in April” she wrote on Twitterwith a link to a radio ad in which one of Milwaukee’s leading conservative radio hosts gave a monologue in support of her candidacy.

But aside from offering the basic jokes about being a conservative judge who will abide by the Constitution, Justice Dorow has said little else about her candidacy. She has turned down almost all interview requests, and in Beloit a campaign aide said she would only answer pre-approved questions. She did not stay at the bar to speak to voters after her comments.

Judge Kelly has been much more explicit about his political advantages. He is supported by the billionaire Uihlein family, whose super PAC, Fair Courts America, has spent $2.7 million on ads endorsing him and attacking Judge Protasiewicz.. Judge Kelly has said that the main Conservative donors will drop out of the race if it does not advance to the general election. A spokesman for Fair Courts America did not respond to questions.

“He has to be the type of candidate who will attract independent spending to get the message out to all of Wisconsin,” Judge Kelly told the Republicans gathered at a Lincoln Day dinner in Sawyer County this month. “If it’s not me in the general election, it’s not like the money just goes to Jennifer. It just won’t wear out. So if I’m not the candidate in the general election, Jennifer will go in completely unarmed when the left spends more than $25 million.”

Democrats appear to prefer to take on Judge Kelly and Uihlein’s money rather than Judge Dorow’s shallower record.

A Better Wisconsin Together, a Democratic super PAC, has spent $2 million on TV ads attacking Judge Dorow in the primary, but nothing against Judge Kelly. The Democratic opposition investigation has focused on harming Judge Dorow, who is less well known but perceived as more likable and reasonable than Judge Kelly by voters in Democratic focus groups.

Last year, Wisconsin Democrats watched as Mandela Barnes, a popular, progressive, young black candidate, rallied his support before losing the general election to Sen. Ron Johnson, an older and better-financed white Republican.

Determined not to repeat that recent history, the party’s top leaders and fundraisers rallied behind Judge Protasiewicz, a white-career prosecutor and suburban jurist who is not as vulnerable to the kinds of thinly coded attacks that helped convict Barnes. last fall.

Judge Protasiewicz built a commanding lead in fundraising and opened up a wide lead in private bipartisan polling ahead of the primary. She is expected to take first place Tuesday, and the other liberal candidate in the race, Everett Mitchell, a more progressive black judge from Dane County, is projected to finish fourth.

Near unanimity among Democrats combined with a fractured Republican Party has Democrats planning and Republicans fearing a barrage of attack ads starting Wednesday against any conservative candidate who advances to a likely showdown with Justice Protasiewicz. A reverse momentum in August hurt Barnes, as Johnson and his allies poured tens of millions into attack ads before the Democrat could recover.

“There is no world in which Janet is defined by the right in the first weeks of the race,” said Sachin Chheda, one of Protasiewicz’s top campaign strategists. “We are ready for the results on Tuesday and we will put our foot down on the gas on Wednesday.”

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