Liberal Supreme Court candidate Janet Protasiewicz drew criticism from conservative rival Daniel Kelly at a WisPolitics.com forum in Madison after she said the state’s legislative maps are “absolutely, positively rigged.”
Among the four Supreme Court candidates who participated in Monday’s forum, Protasiewicz offered the most forceful answer on the court’s ruling.
The state Supreme Court in separate 4-3 rulings ordered the parties submitting proposed boundaries for the legislative and congressional districts to take a “least-change” approach to what Republicans approved in 2011. The court then later selected the legislative map drawn by GOP lawmakers for following that guideline and being race neutral.
Protasiewicz, a Milwaukee County Circuit Court judge, said the current maps are gerrymandered to take power away from densely populated areas.
“I don’t think you could say to any reasonable person that the maps are fair,” she said. “The least-change approach, I mean, I think the idea of it might sound good to some people. I see no basis for it in the Constitution, no basis in case law.”
Protasiewicz wouldn’t say for certain how she would’ve ruled on the maps, “but I can tell you my values and common sense tell you that it’s wrong.”
Kelly, who served on the state Supreme Court from 2016-2020 after being appointed by former GOP Gov. Scott Walker, said judges who tell you their values ahead of hearing the facts of a case are not impartial.
“I think when someone tells you what their values are in answer to a legal question, they’re telling you how they’re going to decide a case,” said Kelly, who lost his 2020 bid for a full 10-year term on the court.
Kelly added the court only considers legal questions about maps, not political questions, “unless we are dead set on tearing down the distinctions between the branches of government that our Constitution created.”
Liberal Dane County Circuit Court Judge Everett Mitchell characterized the least-change approach as a way to restrict African Americans’ voting rights.
“Any time as an African American in judicial spaces, I hear the words ‘least changes approach,’ it just brings up all kinds of bad trauma,” he said.
Mitchell, who was an assistant district attorney in Dane County for two years, said it’s important voters know the candidates’ values, “so you can decide who you want sitting in that black robe making decisions about the values of our state.”
Conservative Waukesha County Circuit Court Judge Jennifer Dorow, who frequently referenced a binder in front of her while answering questions, did not say what she thinks about the current maps or the least-change approach.
“Now, there is talk about further challenges,” said Dorow, a former prosecutor and defense attorney Walker appointed to the Waukesha bench in 2011. “So I will not put myself in a position to prejudge anything. But as with any cases, I will listen to the challenge, and I will apply the law to the facts at hand.”
The WisPolitics.com forum was the first joint appearance by the four candidates since they filed to run for the seat of retiring conservative Pat Roggensack, who was in the audience. The race will determine the ideological balance of the state Supreme Court, where conservatives now have a 4-3 majority, though Justice Brian Hagedorn has sided with his liberal colleagues on several high-profile cases.
The top two vote-getters in the Feb. 21 primary will advance to the April 4 election.
The liberal candidates also said the U.S. Supreme Court’s decision to overturn abortion protections in Roe v. Wade was the worst decision the high court has made in the last 30 years.
Mitchell said the decision last year to strip federal abortion protections and toss the issue to states put the idea of privacy at risk. He said that idea was a critical pillar to understanding the law and created a sense of chaos.
“But this one is significant because it was the first time in my study of the law, that I can see, that the Supreme Court went and took a right for which there had been a right for people for over 50 years.”
Protasiewicz, who answered immediately after Mitchell, said she agrees the Dobbs v. Jackson decision overturning abortion protections in Roe was the worst.
“That is the epitome and definition of judicial activism,” she said.
Dorow and Kelly previously answered that question on their judicial applications prior to their appointments by Walker.
Kelly stuck by his original answer, arguing the U.S. Supreme Court’s 2005 decision justifying the government taking private property to put it to more productive economic use affected Americans’ rights to liberty and the pursuit of happiness.
“You’ve acquired that property,” he said. “Whether it’s real estate, or personal property, for a reason. Because you believe that it would be productive – it would be enjoyable – it would be enjoyable because it would advance your pursuit of happiness.”
In her application, Dorow cited the 2003 U.S. Supreme Court ruling overturning an anti-sodomy law in Texas. Dorow didn’t say whether she believes that remains the worst decision issued by the state or U.S. Supreme courts.
“Sometimes I don’t personally agree with the law that I’m applying,” she said. “And I’m sure that’s also true for the U.S. and Wisconsin Supreme Court justices. Sometimes the words or even the statutes themselves are stupid. But stupid doesn’t mean unconstitutional.”
There was a lighthearted moment near the end of the forum when Mitchell interrupted Kelly after the former justice said Alexander Hamilton was his favorite founding father.
Kelly, in response to an audience question, said Hamilton is his favorite because he wrote extensively about the importance of the limited roles of the three branches of government. Hamilton especially considered the court an important branch.
“Because they have neither the power of the sword nor the purse,” he said. “They can’t acquire anything, can’t do anything with motive force. That belongs to the executive branch. All it has is its judgment.”
But before Kelly could explain the choice, Mitchell chimed in.
“Awe, come on man,” Mitchell said to a crowd of laughter while throwing his hands up in front of him.
Mitchell said aside from Hamilton, Thomas Jefferson was his favorite.
He said it’s complex to pick a favorite, though, when considering his ancestors were enslaved when the nation was founded.
“I would say Thomas Jefferson gives me the greatest because he penned those revolutionary words ‘life, liberty and the pursuit of happiness,'” he said. “But he was also the one who also codified the idea of what race is.”
Dorow picked George Washington as her favorite, saying his religious faith and commitment to fighting against the British make her proud.
“The man who, kind of like a David against Goliath, went out and led our troops in battle against the tyrannical government that King George had thrust upon the colonies,” she said.
Protasiewicz said John Adams.
“Brilliant, creative, hardworking, scrappy New Englander staying away from Abigail, fighting so hard to form this country,” she said, describing Adams.
Watch the forum here: https://www.wispolitics.com/2023/wispolitics-supreme-court-forum