Here & Now

Janine Geske on Daniel Kelly Versus Janet Protasiewicz

Frederica Freyberg:

It’s said Wisconsin Supreme Court elections are nonpartisan in name only and that seems more true now than ever. What does a former justice of the high court think of this trend? We turn to Janine Geske, who served on the court from 1993 to 1998. Justice, thanks for being here.

Janine Geske:

It’s my pleasure to be here. What do I think?

Frederica Freyberg:

Do you think we’ve come fully out of the gates with these just being kind of partisan politics now?

Janine Geske:

Well, it appears that way. It appears that way by everything from endorsements to the money being put in to people talking about what their values and their beliefs are. And it looks like to the electorate, people are running on issues how they’re going to vote. To me that is much more a legislative partisan race than it is a Supreme Court race. I find it very distressing.

Frederica Freyberg:

I want to talk more about and also relay to the viewers and remind them that Judge Protasiewicz is campaigning as a supporter of abortion rights and says the legislative maps are rigged. She maintains voters want to know where people stand but again, you don’t think so.

Janine Geske:

The problem with that and I understand — I mean, we all have our own beliefs. The problem is whether people believe it to be a signal on how she’s going to vote on the issue. That’s all fine if that’s your values but if you’re taking an oath that you will follow the law regardless of where it leads you in opinion, even if it’s inconsistent with what you might vote for, that’s what a judge should do. I think both candidates are doing that in different ways of indicating or hinting where they may vote and I have no doubt both of them would take their role seriously but the electorate is going to believe the issue is on the ballot as opposed to the candidate. And we want judges that are going to look at each case independently and look at it and whether their supporters like it or not come to the conclusion they believe is right.

Frederica Freyberg:

Former Justice Kelly isn’t exactly nonpartisan. He’s worked for both the state and national Republican parties including advising on the fake elector scheme here in Wisconsin and yet he does say this virtue signaling, as we’ve discussed, makes Judge Protasiewicz not committed to the constitutional order. Is that — do you think that’s fair?

Janine Geske:

No, I think both candidates are doing it in different ways and I think there are not people who are doubting where Justice Kelly indicates he might be on issues. He’s doing it in different ways and he shows it in different ways about how he’s worked and who he’s represented and what issues he’s taken on. I think the question we have to ask them is if your legal conclusion comes to a different result than what you’re advocating now, are you willing to do that? If you can’t, then you shouldn’t sit on cases. I think they’re both giving the feeling about where they are on issues. There’s nothing wrong with that as long as voters understand their oath is to decide sometimes inconsistently with what they might believe.

Frederica Freyberg:

Does it seem like a charade then to suggest neither side would “legislate from the bench?”

Janine Geske:

Well, I don’t think it’s a charade. I’m not doubting the integrity of the candidates. What I’m concerned about is how the campaigns get shaped so people believe that’s what we’re electing. An example of that we can point to Justice Kelly’s view to Justice Hagedorn and when he’s referring to Justice Hagedorn, he talks about him not being trustworthy and not being reliable because he wasn’t reliably conservative which means Justice Hagedorn came to a different legal conclusion than perhaps Justice Kelly would. We can’t be calling people — some people call him traitors. I don’t know that Justice Kelly has done that but certainly indicated that he is profoundly disappointed in Justice Hagedorn on the results of his votes on cases and I think people have to understand you have to do that when you’re a judge and people may not always be happy with the result.

Frederica Freyberg:

What happened to the days of candidates for the Supreme Court saying they couldn’t talk about that because that issue might come before them? It sounds almost quaint today.

Janine Geske:

Well it was. It wasn’t quaint, it was really true. There are times that I’ve publicly talked about cases that my vote was not consistent with what I would have done if I were voting, voting at the ballot box. There are times sometimes I would write a concurrence or another opinion saying I wish the legislature would look at this and change things but this is the way I interpreted it as a judge. I think the risk that people are going to think you’re electing people who are going to deliver a vote for you is unfortunate. I’m actually becoming an advocate for appointment of judges. I think we’ve gone way over the line of trying to elect fair and impartial judges that people can have confidence in.

Frederica Freyberg:

What does all of this mean including the high stakes, high-spending nature of this race reportedly projected to be the most expensive judicial election in the United States? What does all this mean for the integrity in your mind of the court?

Janine Geske:

I think it really impacts the integrity of the court and the faith people have in the independence of the judiciary. It ripples all the way down to the trial courts. It’s not just the Supreme Court that people are going to think judges respond to their supporters and that certain parties are going to win because of who is sitting on the bench. This is not what our founders wanted when they made Wisconsin a state where we elect judges. I think they wanted judges who were involved in their communities, that were out that people respected and knew and committed their lives to public service and now we’ve got these ads and things giving us the sense we’re electing people who are going to represent certain interests.

Frederica Freyberg:

Janine Geske, we leave it there. Thank you for your thoughts.

Janine Geske:

You’re welcome. Thank you for having me.