Wis. Supreme Court candidates share their philosophies and respond to attacks in one-on-one interviews
WAUSAU, Wis. (WSAW) - The aggressive campaigning in the Wisconsin Supreme Court race will soon come to an end after voters cast ballots for their pick of two candidates on Tuesday. NewsChannel 7 sat down with former appointed Justice Daniel Kelly and Milwaukee Circuit Court Judge Janet Protasiewicz to make their case to voters and address attacks the other and their supporters have laid against them.
The race will determine the ideological majority in the court, with conservatives working to maintain their 4-3 majority with Kelly. If Protasiewicz wins the seat, it would be the first time in nearly a decade that the court has shifted to a liberal majority. It comes as the court is likely to face cases related to issues like access to abortion, redistricting, election laws, and union rights.
That potential shift and issue-based stakes have broken national judicial records in campaign donations and spending. According to the Associated Press, Protasiewicz raised nearly $12.4 million during the last campaign finance reporting period ahead of election day. Kelly’s campaign raised $2.2 million in the same period. In total, Kelly raised $2.7 million. About half a million dollars worth of in-kind contributions came from the Republican Party of Wisconsin, plus about $50,000 in donations came from county Republican parties and Republican Assembly Campaign Committee. Overall, Protasiewicz raised a total of $14.5 million, with more than half coming from the Democratic Party of Wisconsin.
Both candidates say they will follow the specific facts of each case and follow the law as they make decisions. Speaking about her experience in family and criminal court, Protasiewicz said her sentencing decisions consider the facts of the case, the seriousness of the crime, the character of the convicted person, and the need to protect the public. Speaking more broadly at a supreme court level, she said this was her philosophy.
“It’s important that everybody gets a fair shot, that everybody’s treated the same, that there’s an equal playing field, that there’s never a thumb on the scale. And I make my decisions based on the law and the Constitution.”
Kelly, who has worked as a private attorney in addition to his four years on the state’s highest court said there should be an unbroken chain of logic that “squeezes out” your own personal politics from the decisions.
“I start with the law that’s applicable to the case -- whether it’s a constitutional provision, statute, regulation, common law, whatever it might be -- and then I use rigorous logic to move from those premises, all the way down to the conclusion.”
Overt vs. covert opinions
Protasiewicz has been open about her personal views on various issues, including that she believes women should have the right to make their own reproductive decisions, and that the legislative district maps are not fair or “rigged.” Her opinions have won her endorsements by organizations like Planned Parenthood, Emily’s List, and liberal groups.
“I’ve been very clear about what my values are -- very, very clear -- so that the people of the state of Wisconsin know what they are. So they don’t have to go and go on a little sleuthing trip to try to figure them out. They know what they are. But I’ve also been equally careful to say, equally careful and consistent to say, I’m not making any promises.”
About 10 years ago, sharing personal views was not her campaign strategy. In her race for her current seat as Milwaukee County Circuit Court Judge against now-Justice Rebecca Bradley, her campaign manager told Urban Milwaukee in a question about abortion that “her belief is a personal matter.”
Kelly said his personal beliefs do not matter because he will follow the law and facts of the cases in front of him. His past work, however, has included representation of politicized, conservative groups, such as anti-abortion groups and the Republican National Convention related to the 2020 fake elector’s plan. Kelly also rented space for his campaign office out of a Republican headquarters in his previous election bid.
“Those were some of my clients,” he responded. “I had a vast array of clients, and you know what, every single one of them had political views. So, just because they’re your client does not mean that you’re taking on their political views. And then that goes to the second step, right? So, recognizing we all have those political views, there has to be a commitment to setting them aside.”
During his four years as an appointed justice, conservatives held the majority in the court, but Kelly criticized Justice Brian Hagedorn fro some of his decisions where he sided with liberal-leaning justices. Kelly told NewsChannel 7 he was criticizing the logic of Hagedorn’s legal conclusions, not because he sided with liberal justices.
Kelly wrote blog posts between 2012-2015 on “Hang Together” where he shared his opinions and analysis about several different issues and cases, including abortion, calling it “sexual libertinism.” He equated Social Security and Medicare programs to “involuntary servitude,” saying recipients “retire without sufficient assets to support themselves.”
“Let’s take a look at the difference between what we do in the court and what we do elsewhere,” he responded. “So we start with the idea that we all have personal views. The second step, we set them aside. And then third, we have a methodology, at least I do, to make sure that doesn’t have any influence on the work of the court. So, I don’t talk about my political views, because they’re not relevant to the work of the court.”
When asked how they would handle a case where their legal conclusion does not support an outcome that benefits their personal beliefs, both said they would follow the laws.
“People appear in front of me, obviously, I’m human, I like some people better than others. I like some lawyers better than others. But it’s critically important that everybody is treated exactly the same and it’s the same with the law,” Protasiewicz said “Our legislature, you know, does an OK job on a number of the laws that affect, you know, criminal cases or family court cases. But sometimes I’m in court, and I think, you know, they could have done that better.”
While she did not give a specific example of a time she came to a conclusion that went against her personal beliefs in her interview with NewsChannel 7, she did in the sole debate between the two candidates. She said she finds the expungement statute that she disagrees with and has found difficult as she delivers criminal sentences.
“Our expungement statute states that at the time of sentencing, the court has to make a determination as to whether or not an offense is going to be expunged, that would be removed, from a person’s record. That’s really hard to do at the time of sentencing because what you want to do is give a person an opportunity to be placed on probation or supervision and see if they’re actually going to conform their conduct to what you expect them to do.”
Kelly rephrased the question NewsChannel 7 posed asking for a specific example of a time when he came to a legal conclusion that went against his personal beliefs. He gave the example of the SEIU v. Vos case, which looked at the constitutionality of recently enacted laws, including one that put limitations on the way guidance documents are promulgated. He said he has been told that people who might otherwise be his supporters disapproved of his decision in that case.
When asked if that decision went against his personal beliefs, he would not directly answer.
“Well, my personal beliefs don’t have much to do with the work of the court, but I can tell you this: There, there are those who suggest that jurists have affiliations for the left or the right politically, and I think that’s not correct. Certainly, not correct for me. It ought to be incorrect for everyone on the court, but it was a Republican-authored piece of legislation, and yet we found that to be unconstitutional.”
Protasiewics has been outspoken in her belief that there should be a formal recusal rule for justices as it relates to cases that involve parties that significantly contributed to a justice’s campaign. She said the public should weigh in on the rule to help build confidence in the court.
“It is so critically important that we have integrity on our court, that our courts not only are fair but appear to be fair, you want people to really hold their courts in esteem and believe in their integrity and believe in the fact that you know what, you’re gonna get a fair shake when you go into a courtroom.”
Protasiewicz said she has not recused herself from a case in a while, but does make it known to all parties in the court when she may have a potential conflict and offers them to switch judges if they deem necessary. She explained she made this offer this month when she acknowledged she knew the lead investigating officer on a case well. Protasiewicz assumed the defendant would want to be reassigned to a new judge.
“They came back and they said we know your reputation, your fair. I said wait, we’re already calling the clerk’s office to get you another judge. We don’t want another judge.”
In another instance within the last year, she said a case that came back from an appeal featured an expert witness that she knew well and she recused herself.
Specific to campaign spending and recusal, Kelly said he would look at that on a case-by-case basis.
“As far as direct contributions to the campaign, the law in Wisconsin is that we accept a maximum of $20,000 per person. And in our code, our Code of Conduct says that those in-kind contributions are not a basis for recusal. As far as outside expenditures, those are independent organizations making their own decisions about how to speak in a political race, and so I’ll look at those carefully and hear anyone’s potential concerns should there be a recusal and I would make a decision at that time.”
Again, much of the Republican party’s contributions to Kelly have been through in-kind donations.
As for recusal not on the basis of campaign finance, he said it is the responsibility of the individual justice to decide for themselves.
“Our goal is to make sure that not only are there no external forces that are influencing the work that we do, but then ensuring the people of Wisconsin that there are no external forces influencing the work that we do.”
He said if there is not a conflict that would require a recusal, the justice has “a responsibility to sit on every single case, that comes before the court.”
One clear instance he said he would recuse himself: “If there is a matter on which I had provided counsel, I would recuse myself from that because that would be inappropriate to sit in those circumstances.”
Many of the attacks against Kelly revolve around his conservative ties in his past work and activity. Kelly served on an advisory board for the Wisconsin Institute for Law and Liberty, a conservative law firm that brings cases and supportive statements to the state supreme court.
Kelly explained that he joined the volunteer litigation advisory board about five years before the Supreme Court handled any of the cases that were referenced on that board. So, none of those cases came to him while he was a justice, “and therefore there was no potential conflict there. So, it was my responsibility to sit on those cases, and it would be the same going forward.”
Protasiewicz also criticized Kelly for his endorsement from Wisconsin Right to Life. On its website, the organization states above the candidates it endorses, “The Wisconsin Right to Life Political Action Committee endorses candidates who have pledged to champion pro-life values and stand with Wisconsin Right to Life’s legislative strategy. In judicial elections, the Wisconsin Right to Life Political Action Committee endorses candidates whose judicial philosophies and values fit with those of Wisconsin Right to Life.” She claimed in the March debate that shows he has pledged to rule in their favor on cases like abortion.
Kelly has stated that those that endorse him are endorsing his judicial philosophy and methodology, not his personal beliefs.
Kelly and his supporters have criticized Protasiewicz about how she sentenced some of her criminal cases. That includes: 1) A 17-year-old convicted of child incest with at least one charge of first-degree sexual assault of a child, 2) A child neglect case where a 16-year-old died with severe malnutrition and weighed only 42 pounds, and 3) A kidnapping, trafficking, and child sexual assault case. In all of these cases, prosecutors recommended prison time and each of them received time served and probation.
“I’m not going to comment on any specific case. But I’ll tell you this about sexual assault cases in general,” Protasiewicz responded adding that she has sentenced thousands of cases. “Sexual assault cases are tricky. They frequently involve family members, they frequently involve cases where victims don’t want to come to court and testify. They frequently involve delayed disclosures. They’re very challenging cases. So sometimes the sentences and those cases sound on the surface, as though you know what, what was she thinking. But if you had the ability to look at the entire case, in its entirety, look at the transcripts in these cases, kind of figure out where people were coming from, you’d have an idea.”
She explained these cases come with a lot of trauma for the victims to relive the attacks and to be cross-examined. “So, sometimes the sentences might not seem like they are consistent with what necessarily occurred. But sometimes they’re the best sentence that we can render under all the circumstances.”
She said she remembered the deadly child neglect case saying it was a hard decision and likely took several hours to conduct.
“In every single case, you look at the serious nature of the crime, the need to protect the public and the character of the defendant, you work very, very hard to meld all of those together when you structure a sentence that you think is absolutely appropriate for protecting the community.”
Speaking about sentencing a person to time served, she said these individuals often have been in jail for more than a year by the time they were sentenced. She said it is important to look at the whole case and sentence and how it was structured and believes people would have a better understanding of the sentences if they read the whole transcript. She added she thought it was interesting that out of the many cases she has sentenced, critics have only found a handful they had issues with.
A conservative news outlet, Wisconsin Right Now -- which has openly endorsed Kelly and been against supporting Protasiewicz -- published articles featuring interviews with her former stepson who accused her of elder abuse and for using a racial slur when referring to Black people in the cases she prosecuted.
She said her reaction to those accusations is “anger, upset, frustration, obviously, I have never used the N-word personally. In court, you may use the N-word quoting something out of a transcript or out of a criminal complaint. Of course, you won’t find anybody who has ever heard me say that word. Elder abuse? Ludicrous.”
She said the source is not credible, nor corroborated, and that the accusations were not true. She alluded to possibly suing for defamation after the election, which she stated again in an interview with the Milwaukee Journal Sentinel board.
Election Day is Tuesday, April 4.
Reporting from the Associated Press contributed to this report.
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