The high-stakes election for an open seat on the Wisconsin Supreme Court culminates on Tuesday, April 4. Conservative candidate Daniel Kelly, a former justice on the high court, continued with criticisms of liberal candidate Janet Protasciewicz. Due to illness, sitting Justice Jill Karofsky appeared on behalf of Protasiewicz and offered criticisms of Kelly. Voters are also faced with two statewide ballot questions for one proposed constitutional amendment that have caused confusion — a legal expert explained their consequences.
 

Daniel Kelly
Candidate for Wisconsin Supreme Court

• The most expensive state supreme court race in U.S. history has also turned into a scorched earth campaign on the advertising airwaves. In a personal appearance, Kelly kept up the attacks on his opponent Janet Protasiewicz, saying that whereas he believes in the “rule of law” she believes in the “rule of Janet.”
• Kelly: “She’s made it abundantly clear that if elected, she intends to place herself above the law. She’s made it public that she subscribes to a judicial philosophy known as ‘living constitutionalism.’ The idea behind that is that the courts have the power to amend what the statutes and the constitution say, and that’s certainly not the way that our form of government is set up. Those changes happen through the conversations of the people of Wisconsin with their Legislatures. Our job is really very humble. Our responsibility is simply to use the existing law to decide the cases that come before us — and that’s it. The people of Wisconsin have told us that they’re not really interested in what we think about the laws, whether they’re good or useful. They say they reserved those conversations for the Legislature. So the question is, are we going to continue with our 175-year tradition with our Wisconsin Constitution, or are we going to trade that in for someone who believes that she can be above the law?”

Justice Jill Karofsky
Wisconsin Supreme Court Justice

• Justice Karofsky appeared on behalf of an interview scheduled with candidate Janet Protasiewicz due to illness. Karofsky beat Daniel Kelly for a seat on the Wisconsin Supreme Court in 2020. Like the candidate herself, Karofsky called Kelly a “true threat to democracy.”
• Karofsky: “He is corrupt and he is extreme and we have many, many examples of that. I started to lay that case out in 2020, and Janet Protasciewicz has continued to make that case now in 2023. If you just look at the decisions that he rendered when he was on the Supreme Court, I have never seen a judge first decide what the outcome of a case is going to be — the outcome that he wants — and then work backwards. More than Dan Kelly, you have the example of the Zignego case where he recused himself and then received $20,000 from the Zignegos, goes and unrecused himself. I don’t even know. Unrecusing yourself was a thing when someone first asked me about it. It’s an oxymoron. It can’t be. Three years later, you can’t explain the consistency of his rulings, where he always ruled in favor of the right-wing special interests when he was on the court. He’s been campaigning with insurrectionists, with antisemites, with election deniers. And then just this week, he and his cronies put an ad up about a case … it’s hard to even find the words for what they did to this poor victim. They harassed her. They revictimized her. They made her relive this horrible, horrible sexual assault. She didn’t want any part of this campaign. And if that is not acting in an extreme and corrupt manner, I don’t know what is.”

Cecelia Klingele
Professor, University of Wisconsin Law School

• There are two questions related to bail in criminal court settings on ballots statewide for voters to approve or reject. One asks about whether the state constitution should be amended to allow judges to set conditions to protect the community from “serious harm.” The other asks whether cash bail should be based on multiple considerations, including previous convictions for a violent crime and the need to protect the community from serious harm. Klingele said the biggest change has to do with cash bail provisions.
• Klingele: “Under the law, you’re not supposed to use cash to keep people detained. Cash bond is always supposed to be just a way of making sure people are complying with the rules to decide if they actually are guilty or not. The idea is if you have money, you get to be out pending release, and if you don’t have money, you’re stuck, and so we should set high bonds that people can’t meet. In fact, under existing law — U.S. and state law — you have to set reasonable bonds in amounts that people are expected to be able to pay. People are supposed to be out pending release. And we use conditions to keep everyone safe, not money, which has disparate effects on different people.”

Watch new episodes of Here & Now at 7:30 p.m. on Fridays.