Opinion After a huge progressive win in Wisconsin, the right wing is whining
The race turned primarily on two issues: An 1849 abortion ban triggered by the U.S. Supreme Court’s repeal of Roe v. Wade and a radical gerrymander plan. The latter, possibly the most extreme gerrymander in the country, turned a 50-50 state into a 6-to-2 Republican advantage in congressional seats. The state Supreme Court race, given the issues involved — the Dobbs v. Jackson Women’s Health Organization backlash and the fact the court could play a critical role in determining the certification of Wisconsin’s 2024 presidential electors — had broken all spending records for judicial races, with tens of millions raised and spent by the candidates and third-party groups.
Pundits who thought defeated former president Donald Trump’s indictment would set off some sort of backlash to Kelly’s benefit were engaged in wishful thinking. Wisconsin voters are savvy enough to understand the former president’s legal debacles have nothing whatsoever to do with their state courts.
Democratic state party chairman Ben Wikler, who mounted a mammoth turn-out-the-vote operation, told me Tuesday, “The GOP machine thought they had broken Wisconsin’s democracy enough that they could rip away fundamental rights from half the population and never suffer the consequences. Tonight, an enraged electorate proved them wrong. In the state that tips the country, Dobbs, the crowning achievement of the far right, became its undoing.”
Even before the votes were counted, pundits tut-tutted the unseemly spectacle of judicial elections, apparently unaware that a majority of states have elected judges. Some 39 states have some form of judicial elections, the Brennan Center reports. (Is it only when progressives win by being honest about their views that we hear shrieks about politicization of the judiciary?)
“Republicans here warn that ‘the rule of law’ might be replaced by ‘the rule of Janet,’ and that if she wins, hyperpartisan court races will become the norm,” intoned Semafor’s David Weigel, as if the right’s evisceration of voting rights and reproductive freedom is the norm and exemplifies the rule of law.
Kelly paid lip service during the campaign to the “rule of law,” but he has left little doubt that he is a right-wing champion, not a neutral jurist. He provided legal advice to the state GOP on the phony elector scheme and worked for antiabortion activists. His application to former governor Scott Walker “included a writing sample that likened affirmative action to slavery,” Wisconsin Public Radio reported. No one could be confused about his ideological bent:
Kelly served on a litigation advisory board for the Wisconsin Institute for Law and Liberty, known as WILL, a conservative group that regularly appears before the court defending Republican policies, and trying to overturn Democratic ones. …“An abortion, of course, involves taking the life of a human being,” Kelly wrote in 2012. “And everyone involved in the subject knows it.”
Protasiewicz explained in a recent interview for Wisconsin Public Radio, “I tell you what my values are because I think that Supreme Court candidates should share with the community and the electorate what their values are.” However, she added: “Nonetheless, I will uphold the law [and] follow the Constitution when I make any decisions. Nothing is prejudged.”
Frankly, after years of right-wing judges dissembling about their respect for precedent and their supposed open-mindedness (despite public advocacy against abortion), there is something refreshing about progressive judges going to voters to set out their values. Surely voters don’t prefer nominees dissembling under oath (as members and former members of Congress have accused U.S. Supreme Court Justices Brett M. Kavanaugh and Neil M. Gorsuch of doing)?
The intellectual dishonesty we get from the Federalist Society’s embrace of cherry-picked originalism (that inevitably leads to results conservatives favor) and the glaring intellectual dishonesty in service of partisanship from the current U.S. Supreme Court have made clear that the “game” is to reason backward from results. The lack of intellectual coherence has made even the most earnest court-watchers cynics.
Perhaps it’s time to end the charade wherein right-wing judges pretend not to be right-wing (while their Senate allies bombard any Democratic president’s nominee with QAnon-based conspiracy theories and blatant distortions). Judges on the right have been roving through the judicial landscape to turn back the clock on 150 years of social progress. It’s time to recognize that our courts were long ago politicized. Candor about judges’ views at least respects the intelligence of those putting them on the bench.
If voters overwhelmingly elect judges such as Protasiewicz who clearly articulate their values while vowing to consider each case on its merits, then we are witnessing something far too rare: informed democracy. When everyone lays their cards on the table, it turns out that an honest appraisal of judicial philosophies overwhelmingly benefits Democrats. Newly appointed secretary of state Sarah Godlewski, who organized rallies and campaigned throughout the state for a progressive win, told me, “The results couldn’t be more clear: Reproductive freedom was the deciding factor in this election. Wisconsinites turned out because they understood that when abortion rights are under attack, the attacks won’t stop there.”
Don’t get me wrong: I’d prefer the days when justices such as Sandra Day O’Connor and Anthony M. Kennedy, were not a certain vote for one side or another but instead considered each case on its merits. I long for the day when you could take judges at their word when they spelled out their fidelity to precedent. But we are not there. And we haven’t been there for years.
Elected judges around the country should perk up: If they want to hijack democracy by acting like MAGA legislators in robes, they’ll find themselves out of office. And the warning to Republicans could not be more blunt: If you keep pushing right-wing judges widely out of step with the 21st-century United States to trample on cherished civil rights, voters will boot you out, up and down the ballot.
Republicans have every right to panic that Dobbs might usher in a new era of Democratic dominance in critical swing states.
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