Candidates tangle over political issues, judicial perspectives at first 2023 Wisconsin Supreme Court forum

The two conservatives and two liberals running in the 2023 race for an open seat on the state's high court were offered questions about high-profile issues of law and its application to difficult and disputed issues.

By Zac Schultz

January 10, 2023

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Jennifer Dorow, Daniel Kelly, Everett Mitchell and Janet Protasiewicz sit at a table ringed with stage drapery and a banner with a wordmark for WisPolitics, with a sponsor sign for WisPolitics, the State Bar of Wisconsin and the Wisconsin Institute for Law and Liberty in the background.

Judge Jennifer Dorow, former Justice Daniel Kelly, Judge Everett Mitchell and Judge Janet Protasiewicz participate in a panel forum for Wisconsin Supreme Court candidates in Madison on Jan. 10, 2023. (Credit: PBS Wisconsin)

The four candidates running for a seat on the Wisconsin Supreme Court in 2023 have a short window of time to make an impression before the Feb. 21 primary election, and they wasted no time at a Jan. 9 forum in Madison trying to define themselves to potential voters.

Milwaukee County Judge Janet Protasiewicz only made it to her second sentence in her introductory statement before attacking the conservative majority on the state’s high court.

“I could not sit back and watch extreme right-wing partisans hijack our Supreme Court,” Protasiewicz said

Dane County Judge Everett Mitchell hopes to be the first Black justice elected to the Wisconsin Supreme Court, a goal he referenced in his opening sentence.

“I believe our state deserves a justice that reflects the diversity and ideas and values of our entire state,” Mitchell said.

Daniel Kelly is a former justice on the court, having been appointed in 2016 by then-Gov. Scott Walker, a Republican. Kelly made no reference to losing his bid for re-election in 2020, instead portraying himself as a quasi-incumbent.

“Now, I’m the only candidate in this race who has experience doing this sort of thing,” Kelly said.

Waukesha County Judge Jennifer Dorow made an early reference to her claim to fame, which is presiding as judge in the highly-publicized 2022 trial of Darrell Brooks, who was convicted in the 2021 Waukesha Christmas parade murders.

“I heard from judges across the country and even inmates, who sent letters praising my efforts to be fair and impartial in the face of extreme disrespect, disruption and at times even vile behavior,” Dorow said.

When it comes to their broader political ideologies, Dorow and Kelly are conservatives and Protasiewicz and Mitchell are liberals.

The winner will replace the retiring Justice Patience Roggensack.

The remaining justices can generally be divided into blocks of three conservatives and three liberals, so the 2023 election will determine the ideological balance of the court just as it is set to render decisions over issues like abortion rights and another potential battle over redistricting.

Redistricting was a topic of discussion at the forum, as Protasiewicz made it clear what she thought about the state Supreme Court’s decisions to use Republican-created maps for legislative districts.

“So let’s be clear here. The maps are rigged — bottom line. Absolutely, positively rigged. They do not reflect the people in the state,” she said. “They are rigged, period.”

It is expected that if liberal justices control the court, Democrats will attempt to get the court to relitigate the current maps, something Protasiewicz is prepared for.

“I believe the gerrymandering decision was wrong. As I indicated to you before, I can’t ever tell you what I would do on a particular case, but I can tell you my values and common sense tell you that it’s wrong,” Protasiewicz said

Kelly agreed with the decision by the conservative majority on the high court to implement the Republican maps, and criticized Protasiewicz for her stance.

“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 the case,” Kelly said.

Dorow spent most of the time during her answers referencing a plastic binder of notes in front of her, often declining to give specific answers, including about redistricting.

“Now there is talk about further challenges. So I will not put myself in a position to prejudge anything. But as with any case, I will listen to the challenge and I will apply the law to the task at hand,” Dorow said.

Mitchell argued that voters should hear about the values of the candidates.

“We all have values, and it is important to you to know our values so you can decide who you want to be sitting in that black robe making decisions about the values of our state,” he said.

During his four years on the court, Kelly sided with the conservative justices and conservative plaintiffs on every controversial case he heard, but said politics were never part of his motivation.

“Politics is poison to the work of the court. Everybody who comes to the court — regardless of what they might tell you — has political beliefs. The question is whether you can set them aside to do the work of the court,” said Kelly.

Dorow spoke from a similar position.

“So the role of the judge at its core is to apply the law, not make it. Laws are written and words have meaning. Everybody knows this,” she said.

Mitchell spoke emotionally about the power of the courts to make change in society, referencing the Voting Rights Act and Brown v. Board of Education, the 1954 U.S. Supreme Court case that struck down segregation in public schools.

“You can use the law as a force for good — that you can use the law as a force for change and making people’s lives better,” Mitchell said.

Protasiewicz echoed that position, describing the legal theory of a constitution as a living document.

“(It is) a living, breathing document and our laws change and they evolve and the case law changes and evolves,” she said.

That was too much for Kelly, who referenced Alexander Hamilton’s writings on the role of the courts.

“If it should ever combine itself with the powers of the Legislature, that would then become the very definition of tyranny,” Kelly paraphrased. “But I have heard a fair amount [of] my opponents talking about their values and what they think that the law ought to do. That is the step towards the combination of the power of the judiciary and the Legislature. That is a step we cannot take.”

The primary election for the 2023 Wisconsin Supreme Court election is on Tuesday, Feb. 21, from which the top two vote-getters will move on to face off in the spring election on Tuesday, April 4. More information about the candidates and race is available at Wisconsin Vote.

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