Wisconsin Court Candidates Clash Over Abortion and Democracy

MADISON, Wis. — The dueling contenders in Wisconsin’s consequential and costly Supreme Court race collided on Tuesday in their lone debate, a hostile affair that illustrated their stark disagreements over cultural issues and the role of a justice on the state’s high court.

The candidates, Janet Protasiewicz, a liberal Milwaukee County judge, and Daniel Kelly, a conservative former State Supreme Court justice, have such personal animus that they did not shake hands before or after the debate, repeatedly called each other liars and argued that electing the other would lead to a demise of Wisconsin’s democracy.

It was an in-person encapsulation of the enduring dynamics of the last two decades of Wisconsin politics, with meaningful factions in both parties convinced of the necessity not merely of winning but of destroying their opponents.

“I am running against probably one of the most extreme partisan characters in the history of this state,” Judge Protasiewicz said of Justice Kelly, who was ousted in a 2020 election. “He is a true threat to our democracy.”

Justice Kelly slammed Judge Protasiewicz for making a muscular defense of abortion rights and calling the state’s gerrymandered legislative maps “rigged” — the two issues that sit at the centerpiece of her campaign.

“She just told you that she’s going to steal the legislative authority and use that in the courts,” Justice Kelly said. “Political questions belong in the Legislature — we all know that since grade school with ‘Schoolhouse Rock.’”

For a State Supreme Court debate, even in a race that has become the most expensive judicial election in American history, with $29 million spent on TV ads alone, the event turned into something of a political circus. Outside the debate, which was hosted by the State Bar of Wisconsin in an office park on the east edge of Madison, a woman dressed as a uterus reminded attendees of the stakes of the election: If Judge Protasiewicz wins, the court will be likely to overturn Wisconsin’s total ban on abortion, which was enacted in 1849.

In the lobby before and after the debate, several current and former Wisconsin Supreme Court members mingled with reporters, lawyers and Madison lobbyists who munched on a spread of cookies, brownies and Rice Krispie treats.

The debate was the only scheduled joint appearance to which the two candidates have agreed during the six-week general election before voting ends on April 4. Early voting began Tuesday morning.

The race is formally nonpartisan, though the Democratic Party of Wisconsin has transferred $2.5 million to the Protasiewicz campaign and has directed its army of volunteers and staff members to turn out the vote for her. Justice Kelly said during the debate that he had refused financial donations from the Republican Party of Wisconsin, which lags far behind state Democrats in fund-raising, but that he had accepted in-kind contributions.

Whichever side wins the April 4 election will hold a four-to-three majority on the court, which along with rulings on abortion and gerrymandering is expected to decide an array of voting issues ahead of and during the 2024 presidential election. Judge Protasiewicz holds a single-digit lead over Justice Kelly in private polling conducted by groups on both sides of the race. No public polls have been released.

Justice Kelly agreed this month to participate in 10 other debates and candidate forums across the state, hosted by local news organizations, rotary clubs and county bar associations, but Judge Protasiewicz declined them all while agreeing only to Tuesday’s midday debate. That event was set to air on a delay later in the afternoon on television stations in Madison and La Crosse — but not in the state’s other markets, including Milwaukee, the largest by far.

Justice Kelly’s campaign has accused Judge Protasiewicz of hiding behind what has emerged as her colossal fund-raising advantage.

The Protasiewicz campaign has aired $9.8 million in television advertisements, while Justice Kelly began advertising only this past weekend.

He has spent $415,000, though conservative outside groups have spent $6.4 million on his behalf, according to AdImpact, a media tracking firm. Outside groups backing Judge Protasiewicz have spent an additional $2.6 million.

Much of the debate centered on abortion and crime, the two issues that have dominated the television ad campaign in the race. Judge Protasiewicz gave no ground in her defense of abortion rights, even though Justice Kelly and the debate’s moderators suggested she had already made up her mind on how she would rule on a current legal challenge to the state’s abortion ban.

Abortion, which became illegal overnight in Wisconsin last summer after the Supreme Court overturned Roe v. Wade, has become so central to the court campaign that even organizations that focus on other issues have turned to abortion rights.

Everytown, the gun control group funded largely by former Mayor Michael R. Bloomberg of New York, is broadcasting a 30-second TV ad in the state this week that spends half its time attacking Justice Kelly’s abortion stance before reminding voters he opposed background checks on new gun sales.

“I think the electorate deserves to know what a person’s values are rather than hiding them,” Judge Protasiewicz said at the debate. “I’ve also been very clear that any decision that I render will be made based solely on the law and the Constitution.” She went on, “I can tell you that if my opponent is elected — I can tell you with 100 percent certainty — that 1849 abortion ban will stay on the books.”

Justice Kelly, who has been endorsed by Wisconsin’s leading anti-abortion organizations, argued that his association with them did not mean he would vote in their favor.

“You don’t know what I’m thinking about that abortion ban, you have no idea,” he responded. Justice Kelly said the anti-abortion groups had endorsed him after he explained to them his judicial philosophy. He said he made no promises about how he would rule on the case most important to their cause.

“I explained to them at length the role of the jurist instead of talking about politics, which is all you do,” he said.

Justice Kelly appeared to be a far more skilled debater, delivering prepared attack lines with ease. Judge Protasiewicz was less polished — she flubbed her opening statement, instead asking how to decipher the clocks that showed how much time she had left to speak.

After nearly an hour, the moderators asked the two candidates how to best inspire public confidence in the state’s high court, given the nasty and partisan tone of this year’s campaign and past ugly headlines that included a 2011 episode in which one justice accused another of choking her during a debate in the court’s chambers.

Judge Protasiewicz called for a re-examination of the court’s recusal rules, which largely leave the call up to each justice, and more transparency before decisions are delivered.

But for Justice Kelly, the way to improve the Wisconsin Supreme Court’s legitimacy was to place him back on it.

“First, by winning,” he said. “When I say that my opponent has told sloppy and irresponsible lies, I mean that in every possible way.”