How Wisconsin's sharp political divides shaped its 2023 state Supreme Court election
Voters in Wisconsin will decide the balance of the state's Supreme Court in the most expensive judicial election in history as sharp political divides are shaping what could be the most important election of 2023.
April 4, 2023
Voters in Wisconsin will decide the balance of the state Supreme Court in the most expensive judicial election in history.
Judy Woodruff recently traveled to Wisconsin to see how the state's sharp political divides are shaping what could be the most important election of 2023.
It's part of her series "America at a Crossroads."
After a long winter, small signs of spring in the Upper Midwest, but, as Wisconsin thaws, the bitter winds of politics are against sweeping the Badger State.
This time around, though, the race isn't for Congress, governor, or the presidency. It's for the state Supreme Court.
This election is officially nonpartisan. Neither of the candidates will have a D or an R next to their names on the ballot. But given the deep divide here, and the fact that the state Supreme Court will play a role in deciding the future of everything from abortion, to redistricting, to election laws in Wisconsin, voter interest is high and politics has been infused from the start.
Janet Protasiewicz, Wisconsin Supreme Court candidate:
We cannot take our foot off the pedal for a second.
The election pits liberal Milwaukee County Judge Janet Protasiewicz...
Daniel Kelly, Wisconsin Supreme Court candidate:
Janet Protasiewicz is a threat to our liberties.
... against conservative Daniel Kelly, a former state Supreme Court justice who lost reelection in 2020.
Tomorrow's winner could cast the tie-breaking vote on an evenly split court.
Hello there. I'm Judy Woodruff.
So I wanted to hear from voters in this sharply divided state at a time of growing partisanship, not just here, but in courts across the country.
Charlie Sykes, Editor at Large, "The Bulwark":
We have never seen anything quite like this.
Charlie Sykes is a longtime political commentator in Wisconsin. Once a conservative talk show host, he founded the center-right news and opinion site "The Bulwark."
Good morning, and welcome to "The Bulwark" podcast.
I think that, in the last decade or so, Wisconsin has felt like it is the ground zero for a lot of the issues that we have in American politics. And maybe the polarization that we see nationally was foreshadowed here in Wisconsin.
Sydney Lee, Wisconsin voter:
It's really scary, because there's so much on the line.
Twenty-five-year-old Sydney Lee has lived in Milwaukee her whole life. She's been canvassing and making calls in support of Protasiewicz.
We have a lot of issues that are becoming partisan, but, really, they're human issues. And human issues should never be a partisan thing.
Because it is so polarizing, we need somebody who's equitable, and Janet is equitable.
Among those human issues, Lee says, are LGBTQ and abortion rights, especially after the U.S. Supreme Court's overturning of "Roe v. Wade" last year.
I'm a Black queer woman, and I want to make sure that I can marry who I want to marry one day. I want to make sure that, if I need to have an abortion, or if I need a medical procedure, that I shouldn't need clearance for it to do something that's for my choice of my body. Like, I should be able to make decisions for myself.
What does your future look like if Justice Kelly is the winner?
It looks like me moving.
While Protasiewicz hasn't declared how she'd rule if Wisconsin's 1849 ban on abortion made its way to the state's high court, she has been clear on what she calls her values.
That should be the woman's right to make the reproductive health decision, period. If my opponent is elected, I can tell you with 100 percent certainty that 1849 abortion ban will stay on the books.
Kelly has downplayed his own past statements opposing abortion and the endorsements he's received from anti-abortion groups. Instead, he criticizes his opponent for openly discussing her views.
This is the problem that you have when you have a candidate who does nothing but talk about her personal politics.
Judges who put their own agenda above the law.
Kelly and his supporters have also tried to paint Protasiewicz as weak on crime for sentences she handed down as a judge in Milwaukee County.
A long history of letting dangerous criminals back into our streets.
Eric Severson, Waukesha County Sheriff:
Directly undermining the work of our officers and putting your family at risk.
That charge, which Protasiewicz disputes, has influenced retired Milwaukee police officer Gary Post to vote for Kelly.
Gary Post, Wisconsin voter:
Definitely, there should be leniency. However, what I have seen far too much is where I have seen violent persons who are living a lifestyle over many, many years and sometimes decades of violence. And that has to be addressed.
Bottom line, Post says he believes Protasiewicz is too progressive.
Our country is going into such a liberal pathway that it's almost gone too far. And I think Janet Protasiewicz is more of a liberal steering it still in that direction.
But Protasiewicz has called Dan Kelly extreme, criticizing his work for the Republican Party and his role in a fake electors scheme after President Trump lost Wisconsin in 2020.
Kelly advised Trump operatives as special counsel to overturn the will of the people.
Janet upholds the Constitution.
The race has already drawn record-breaking millions in ad spending.
I will always protect the rule of law.
This is one of those cases where the hype is not overstated, because, here in Wisconsin, everything is at stake. We now have extreme partisanship, but we also have gridlock between a legislature dominated by Republicans and a Democratic governor.
Nothing is going to happen. Nothing is going to change. So everything shifts to the Supreme Court. And no one is making any pretense that this is anything other than partisan. So it's going to be hard to go back to a, we ought to elect judges based on their credentials or their judicial temperament. That era seems to have been beaten to death with hammers.
Charlie Sykes traces much of the polarization in Wisconsin back over a decade to then-Governor Scott Walker's Act 10, a measure that, among other things, effectively ended collective bargaining for the state's public employees.
It sparked months of intense protests at the state Capitol and exposed divisions still seen today.
One of the things that, as I look back on it, at a certain point, our politics becomes about the fight. The fight becomes about the fight. It becomes about us versus them. The actual policy matters less than beating the other guy.
Ninety days to win elections.
In the years since Act 10, Wisconsin's statewide elections have flipped back and forth, many by razor-thin margins.
Wolf Blitzer, CNN anchor:
Donald Trump will carry the state of Wisconsin
And, in 2016, Donald Trump defied the polls to win the state by less than 25,000 votes, a victory that was key to handing him the presidency.
We thought that the Republican Party in Wisconsin was people like Paul Ryan. It was people like Reince Priebus. It was not people from the MAGA world.
However, as we have seen, as soon as Donald Trump nailed down the nomination, the centrifugal forces, the gravitational pull of partisan loyalty was very, very intense. And that took a lot of us by surprise. But, in retrospect, you look back and you see that these divisions, this sense of us versus them was a preexisting condition here that Trump was able to exploit and take advantage of.
In 2020, fortunes shifted. President Biden narrowly won Wisconsin. But an attempt by President Trump to overturn the election results reached the state Supreme Court, which rejected the lawsuit by just one vote.
Thirty-seven-year-old Green Bay resident Jon McKinney grew up in a conservative household and long considered himself a Republican. But McKinney, who volunteers at this boat shop teaching craftsmanship skills to kids, says that changed with the 2016 election.
Jon McKinney, Wisconsin voter:
As soon as Donald Trump became president, I mean, the party was foreign to me. They're too focused on power, seats, taking over — controlling the various levers of government. And they don't really care about kind of the foundations of what their ideology is.
So, when it comes to the state Supreme Court race:
There are other races on the ballot that I will be voting for. But after reading about the two candidates, I don't feel like I can vote for either of them.
It builds our community.
McKinney says he's seen politics in Wisconsin become more tribal. He's concerned about the lack of any substantive conversations around policy differences, which has led to the atmosphere surrounding tomorrow's election.
I'm absolutely disgusted by it. You know, Supreme Court justices, I look at as kind of last line of defense. Lawmakers make laws. Judges make sure that those laws are legal. They abide by our Constitution. And, in this race, it's a circus.
Maya Sen, Harvard University:
If it wasn't important, would political leaders go to such great lengths to try to secure their preferred candidates on to courts? And I think the answer is no.
Harvard Professor Maya Sen researches American law and politics. Her 2020 book, "The Judicial Tug of War," explored how politicians and ideology have shaped the U.S. court system.
In the 1980s, Sen says, politicians began to realize the importance of courts in achieving policy goals, particularly with the rise of the anti-abortion movement. That trend continued in the decades that followed, highlighted by the Supreme Court's decision in "Bush v. Gore."
After that point, every nomination onto something like the U.S. Supreme rose dramatically in importance. So, it's really been over the last 20, 25 years where we have had this, like, partisan climate. And that's just increased over time.
For example, Sen's research has shown that federal judges appointed by President Trump are more conservative than those named by President George W. Bush. And, as in Wisconsin, with polarization comes a heightened role for the courts.
As the other branches of power, like the Congress and the presidency, as they become increasingly gridlocked because of partisan conflict, that leaves the courts as being particularly important for things that many Americans care about, like abortion and gun rights and civil rights and religious liberties.
In fact, a poll from the nonpartisan Pew Research Center found that, after the U.S. Supreme Court overturned "Roe v. Wade," Americans' view of the high court hit its lowest favorability rating in years, and the partisan divide in those views grew wider than at any point in decades.
People are very deferential to courts. They will follow court rulings. But the more that they perceive the courts as being driven by politics and not by law, the more skeptical they will be of the court's legitimacy.
And so the natural extension of that is that they might be more skeptical of the rulings themselves and they might be less inclined to follow them.
Some of that skepticism is already weighing on Wisconsin voters like Jon McKinney in Green Bay.
You always want to think the person elected is doing what they believe is right. But there will always be a question of, was it the special interest money that was — that was donated? Are they returning a favor?
Charlie Sykes sees this moment as particularly painful for his home state.
Wisconsin has a long tradition of being a laboratory of democracy. And now to see us falling into this hole, it's disturbing, because it feels as if dysfunction is the new normal, and no one knows where it's going.
Here in Wisconsin, these are decent people. They — people who actually care about their neighbors. And so you just have to have a confidence in the underlying decency of people becoming disgusted with what's happening with politics. But I'm not sure we are there yet.
For the "PBS NewsHour" I'm Judy Woodruff in Milwaukee.