What would normally be a relatively low-key election for a seat on the Wisconsin Supreme Court has gone national as one of the candidates, Milwaukee County Judge Janet Protasiewicz, has turned it into a referendum on abortion.
She is actively campaigning on her pro-choice stance, and abortion rights supporters have flocked to her banner with hopes that she will be the deciding vote as the state tries to figure out where its abortion policy lies after the U.S. Supreme Court overturned Roe v. Wade last year, leaving the issue to the states.
Her rival, former state Supreme Court Justice Daniel Kelly, is pro-life but has taken a lower profile on the issue while accusing Judge Protasiewicz of injecting politics into a job that should be about the law.
“She is playing to a political base,” said Brian Fraley, a Wisconsin-based Republican Party strategist. “He’s playing to the Constitution.”
The April 4 election is shaping up as the next big test of abortion politics. The issue helped limit Democratic losses in November’s midterm congressional elections.
Locals say there is more at stake for the state’s high court, which is supposed to be nonpartisan but has been drawn into all manner of hot-button issues. A victory by Justice Kelly would preserve the court’s 4-3 ideological split in favor of conservatives. Should Judge Protasiewicz win, the balance would flip.
“Given the issues that increasingly come before the court, the ideological majority is seen as very important,” said Charles Franklin, a political science professor and director of the Marquette Law School Poll.
He said the court will likely have to rule on partisan legislative districts drawn by a Republican-led legislature that strongly favor Republicans despite the overall purple tinge to the state.
“The current maps were approved in a controversial 4-3 decision that could be reconsidered if the election results in a liberal majority,” Mr. Franklin said.
He also figured that the high court will have the final say on an 1849 abortion law that says: “Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.” The law was unenforceable until Roe was struck down.
A Class H felony is punishable by up to six years in prison and a maximum fine of $10,000.
Conservatives and Republicans also fear a liberal-leaning court will reverse their gains on school choice, tort reform and limiting the power of public-sector unions.
Seeking to tap into those concerns, Justice Kelly has warned that Judge Protasiewicz is “going to steal the legislative authority and use that in the courts.”
“Political questions belong in the Legislature. We all know that since grade school with ‘Schoolhouse Rock,’” he said in a recent debate in which he also highlighted cases where Justice Protasiewicz let criminals back onto the streets as a way to cast her as soft on crime.
Democrats figure those issues can’t match up against the strength of sentiment over abortion and redistricting, where Waukesha County Democratic Party Chair Matt Mareno said Judge Protasiewicz’s message resonates.
“She is kind of understanding that voters are tired of people getting on the court by saying they are going to be nonpartisan when they have made up their minds already on things like abortion,” he said. “A lot of the messaging is: Do you want ‘Judge Janet,’ who is living in 2023 and wants to put Roe back on the books, or do you want someone who wants to go back to 1849?”
National Democrats are weighing in, with no less than former President Barack Obama urging voters to cast ballots as early voting began on March 14.
The race has shattered the state’s record for spending on a Supreme Court seat. WisPolitics.com’s recent analysis shows roughly $30 million had been spent.
Judge Protasiewicz, in a debate, defended her outspoken focus on abortion by saying she wanted to be upfront with voters, but she said her rulings from the bench would be based solely on the law and the Constitution.
“My personal opinion is that should be the women’s right to make the reproductive health decision. Period,” Judge Protasiewicz said. “If my opponent is elected, I can tell you with 100% certainty that 1849 abortion ban will stay on the books,” she said.
Justice Kelly said that was one of many lies Judge Protasiewicz had spread about him.
“So you don’t know what I’m thinking about that abortion ban. You have no idea,” he said.
He said Judge Protasiewicz sounded like she wanted to run for the state assembly, not a judgeship.
• Seth McLaughlin can be reached at email@example.com.
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