Collegiality a Casualty in Supreme Court Election?

Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.

Legislators and Gov. Tony Evers may want to use a sliver of the budget surplus to hire an experienced family counseling therapist for the state Supreme Court’s next term.

Tuesday’s most expensive judicial election in the nation’s history brought out the worst in all parties. The term “collegial” will not apply when the winner of that election — Milwaukee Court Circuit Judge Janet Protasiewicz — joins the seven-member court in August.

Protasiewicz had called the loser in the race, former Supreme Court Justice Daniel Kelly, a threat to democracy. Her campaign and its supporters ran ads that branded Kelly an “extremist” and tied him to former President Donald Trump’s efforts to overturn his 2020 election loss.

For his part, when he admitted defeat, Kelly said he wished he had a “worthy opponent” to concede to, called Protasiewicz a “serial liar” and added, “This was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts. It was truly beneath contempt.”

Words matter, even those spoken in the heat of campaigns.

One reason those insults will still sting in August is the high-profile efforts of five sitting justices for Protasiewicz or Kelly.

Three liberal justices – Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky – endorsed Protasiewicz. She was also endorsed by Milwaukee County Circuit Court Judge Ellen Brostrom, daughter of retiring Justice Pat Roggensack. Protasiewicz will succeed Roggensack on the court.

In an amazing photo-op, all four — Protasiewicz, Walsh Bradley, Dallet and Karofsky — adopted a hands-aloft-in-victory pose at her election night rally. That image was worth a thousand words.

But Chief Justice Annette Ziegler and Justice Rebecca Bradley endorsed Kelly; Rebecca Bradley served as surrogate for Kelly at some campaign events and publicly questioned Protasiewicz’s qualifications for the court.

In a second amazing photo-op, Rebecca Bradley introduced Kelly, giving him a I’m-so-sorry hug, before he gave his no-concession speech.

So, the only justice who must work with Protasiewicz next term who didn’t actively try to pick their next peer was Brian Hagedorn, considered part of what had been the court’s four-justice conservative bloc.

The new four-justice liberal bloc will also start the next term with Chief Justice Ziegler, elected to a new two-year term as the state’s top judicial officer only weeks ago.

But liberals still chafe at a 2015 change in how chief justices are chosen. That year, Republican legislators got voters to amend the state Constitution so that the seven justices elect the chief justice, instead of the old rule that the longest-serving justice was chief.

That change allowed conservative justices to replace Chief Justice Shirley Abrahamson, the longest-serving chief, a member of the liberal bloc and a nationally known pioneering feminist, with Roggensack. Abrahamson, who died in December 2020, was the first woman to serve on the court and once mentioned as a long-shot candidate for the U.S. Supreme Court.

Will the memory of how Abrahamson was treated invite the new four-justice liberal bloc to replace Ziegler with Walsh Bradley, the longest-serving member of the court who was very close to Abrahamson?

Walsh Bradley, 72, was first elected in 1995; her current term is up in 2025. That’s the next Supreme Court election that threatens to become another liberal-versus-conservative, Republican-versus-Democrat, record-spending brawl.

Another surprising late-campaign development was an appeal that looked like judge shopping by Democratic Atty. Gen. Josh Kaul. In a fund-raising email from the Democratic Party of Wisconsin, Kaul said:

“Dan Kelly was appointed to the Wisconsin Supreme Court by Scott Walker. He was endorsed in 2020 by Donald Trump. He was a lawyer for the Republican Party of Wisconsin. He’s being backed by anti-choice groups. And he has campaigned with Scott Presler, who planned so-called ‘Stop the Steal’ rallies.

“The team at the Democratic Party of Wisconsin has been working hard to help defeat Dan Kelly. Will you support the Democratic Party of Wisconsin by donating $3 today?”

Why was Kaul’s appeal unusual? Assistant attorneys general who work for Kaul in the state Department of Justice handle all criminal appeals heard by the Supreme Court and also represent state agencies in cases pending before the court.

Kaul’s “elect Janet” appeal may be remembered by Justices Ziegler and Rebecca Bradley.

All of which suggests the new court might need a family therapist — if they could agree on who to choose.

Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com