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The state of the race for Wisconsin Supreme Court
The primary is less than two weeks away. Let's break down where things stand in this massively important statewide election that will determine the balance of power on the state's highest court.
The Recombobulation Area is a six-time Milwaukee Press Club award-winning weekly opinion column and online publication written and published by veteran Milwaukee journalist Dan Shafer. Learn more about it here.
The primary in the Wisconsin Spring Election is now less than two weeks away.
Early voting has officially begun, so if you haven’t yet: Make a plan to vote. Be sure you know what’s on your ballot. There are important races happening for local offices all over the state, so go over to MyVote Wisconsin to see what’s on your ballot. There might be more for you to vote on than you think.
There also might just be the one big statewide race that’s looming over everything in the Wisconsin political universe right now: That is, of course, the race for Wisconsin Supreme Court.
The New York Times called this race a “colossal off-year election” and “2023’s biggest, most unusual race.” In Politico, it was called “The most important election nobody’s ever heard of.” The Milwaukee Journal Sentinel reported that it projects to be the most expensive state Supreme Court race in state history, and perhaps the most expensive race of its kind in the nation.
While there are many competing views on this race, all sides seem to agree on one thing: This election is a very, very big deal.
An election to a 10-year term on the state’s highest court is a big deal regardless of the larger context, but this election brings added stakes because it offers a rare opportunity to determine the balance of power on the court.
If either of the two liberal justices running wins the general election on April 4, the current 4-3 conservative majority would flip to a 4-3 liberal majority on Aug. 1 when the new justice is sworn into office.
The Wisconsin Supreme Court has ruled on so many important cases in Wisconsin in recent years, cases that truly impact the day-to-day lives of Wisconsinites.
“For 14 years, conservatives have controlled the Wisconsin Supreme Court, issuing decisions that upheld limits on unions, affirmed a voter ID law, expanded gun rights, curbed the powers of the Democratic governor, banned absentee ballot drop boxes and established political districts that ensured Republican dominance in the state legislature. Now, a reliably conservative justice is retiring, and voters will decide in April whether liberals or conservatives have a majority.”
We cannot overstate the importance of this race.
The conservative majority on this court has been an essential component of the Republican takeover in Wisconsin, and this election offers a chance to restore some semblance of balance to what has so often gone unchecked.
So, with a few short weeks before the primary is decided, where do things stand with a few short weeks before the primary is decided?
With two liberal candidates and two conservative candidates on the ballot, it’s likely that one candidate from each ideological alignment will emerge from the primary to compete in the general election. It is, of course, possible that two conservative candidates or two liberal candidates could be in the top two in the primary, but that seems unlikely.
On the left, the candidate most likely to move on from the primary is Milwaukee County Circuit Judge Janet Protasiewicz. She has lapped the field in fundraising. She has gained key endorsements, like the one from Justice Ann Walsh Bradley, just this week. She just became the first state judicial candidate to gain an endorsement from Emily’s List in the organization’s 38-year history. She was the first candidate to be advertising on television, and her first two ads focused on abortion rights, obviously going to be a key issue in this race, and one that has been a winning issue for left-leaning candidates following the Dobbs ruling. Protasiewicz appears to be building a formidable coalition. Her campaign is in terrific shape.
Dane County Circuit Judge Everett Mitchell, however – while proving to be a very compelling candidate – has not consolidated enough support or raised enough money to the degree necessary to be truly competitive in this race. Even though he was running for all of 2022, his campaign reported just about $115,000 at the end of the year, the lowest amount of any of the four candidates and less than half of what Kelly or Dorow raised. To put it in context, these are Tom Nelson-level fundraising numbers. It’s just not going to be enough for a race that projects to be the most expensive in state history.
Money in politics is an ugly business and races this important shouldn’t come down to such things, but the uncomfortable reality is that it does (and part of that is the fault of the U.S. Supreme Court, it’s worth noting).
But these fundraising numbers matter beyond the simple counting totals because it's not just about the reality of needing the money to fund a competitive statewide campaign, it’s also about consolidating the degree of support from various backers that could influence turnout. The turnout factor is especially important in this race – a spring election in an off-year.
Protasiewicz has racked up several key union endorsements in recent weeks and those kinds of organizational endorsements don’t appear to be coming Mitchell’s way at this stage of the race. Those are the types of endorsements that can move voters to the polls.
While there are some progressives who revere Mitchell and regard him as a generational candidate, that enthusiasm has not materialized into a campaign that looks poised to pull off an upset.
And while Mitchell might be the underdog in this race, he’s not attacking fellow liberal Protasiewicz. There doesn’t appear to be all that much infighting among candidates on the left.
That can’t be said for the conservative candidates, former Wisconsin Supreme Court Justice Daniel Kelly and Waukesha County judge Jennifer Dorow. Kelly said last week that he would not endorse Dorow if she were to win the primary. That’s a pretty big deal.
You don’t have to dig too far to see that the right is getting close to freakout mode over their chances of winning this race.
And with reason. The infighting and friction among conservatives during this primary could translate to a more difficult road ahead in the general election as the floodgates of national spending open into this race, post-primary. In a state where elections are often decided by decimal points, Kelly and his supporters not going to bat for Dorow if he were to lose could make a bit of a difference. That’s some way to treat a fellow graduate of Regent University School of Law (formerly Christian Broadcasting Network University)!
Kelly’s pledged non-endorsement was perhaps the biggest indicator of this tension on the right, but it’s far from the only example. Kelly supporters like Appeals Court Judge Shelley Grogan and Wisconsin Supreme Court Justice Rebecca Bradley haven’t been all that subtle in their criticisms of Dorow.
Bradley ripped Dorow’s performance at the WisPolitics candidate forum in Madison (an event we covered here), writing in a Waukesha Freeman column, “A candidate using a binder to provide answers to questions is simply unprepared for the rigors of a statewide campaign, much less to do the job of a Supreme Court justice.” Grogan said there were “flags” with Dorow’s record as a conservative, criticizing her in talk radio interviews, and has taken some jabs at her on Twitter.
Much of the concerns from the Kelly camp often allude to their frustration with Justice Brian Hagedorn, who has broken with the other three conservatives on the court in several high-profile cases.
Among those are the case challenging the governor’s ability to govern during the pandemic – the four non-Hagedorn conservatives, including then-Justice Daniel Kelly, ruled to strike down Gov. Evers’ “safer at home” order, throwing the state’s pandemic response into chaos, creating an ultimately disastrous outcome – and the case over the 2020 election. Hagedorn sided with the court’s three liberals on the apparently-controversial case to not overturn the results of the 2020 presidential election in Wisconsin. It remains bewildering that three conservative justices on the Wisconsin Supreme Court sided with the Trump campaign in that case and that it was a 4-3 vote and not a 7-0 vote. That vote is a real indicator of just how extreme this court has become with a conservative majority. And the irony of Daniel Kelly running as a self-described “constitutional conservative” while ripping the one conservative justice on the Wisconsin Supreme Court who did not vote to overturn the presidential election results is not lost on us.
Kelly’s “next Hagedorn” criticism seems misguided for a variety of reasons – Hagedorn won by a narrow margin and Kelly lost by double-digits, after all – but there’s also been plenty of valid criticism of Dorow, as well.
Following the high-profile adoration she received during the Darrell Brooks case, she seemed to be on the ascent, but her rising star has dimmed considerably during the months of the campaign. Along with being criticized on the right, she did not impress (to say the least) during the WisPolitics candidate forum, and has been the subject of several critical stories.
One rather difficult story, from the Journal Sentinel’s Dan Bice, involved a gut-wrenching scene where the family of a UWM student who died of fentanyl poisoning confronted Judge Dorow at a campaign event, alleging that it was Dorow’s adult son who sold the pills that caused the student’s death. That confrontation – and story, in general – raises a host of questions.
Others have questioned parts of her background, details of which seem to have gone missing online as of late, and she’s facing criticism over her handling of certain individual cases and a squishy stance on the cash bail system. Progressive PAC A Better Wisconsin Together has released an ad criticizing her for being soft on crime as part of reported spending of more than $800,000 against Dorow. A couple national outlets have also picked up on the story about Dorow and her husband opening a gun range that serves alcohol, but quite frankly, that is a story that will probably make her more likable in Wisconsin.
Regardless, Dorow is still the likely favorite to emerge as the conservative candidate in the general election in this race. Her name recognition is a real factor in a likely lower-turnout election like this one, and she has also picked up key endorsements. She’s been more of the favored candidate among law enforcement, announcing this week she’s reached more than 100 endorsements from police chiefs, sheriffs and district attorneys across the state. She was also endorsed by Justice Patience Roggensack, whose term is ending, opening up this seat on the court.
But Dorow also seems like less of a sure thing than she did a few months ago when some on the right were suggesting that Kelly drop out and back her bid. The Kelly campaign clearly had no interest in doing that, and it has clearly been aggressive in its campaigning. It also has one very important factor behind it in this race: Uihlein money.
We can’t so quickly forget just how impactful Uihlein money can be in a competitive statewide race in Wisconsin. The Uihlein-backed Wisconsin Truth PAC spent nearly $30 million attacking Mandela Barnes after he won the Democratic primary for U.S. Senate last summer, and that was a huge factor – maybe the biggest factor – in why Ron Johnson won a narrow victory. If there’s any factor out there that’s working in Kelly’s favor, it’s the Uihlein money. It remains to be seen if Dick and Liz Uihlein – together or separately, as the megadonor couple sometimes operates – would support Dorow in a general election.
So, who would a liberal candidate – likely Protasiewicz – fare better against? Is it Kelly, who has the deep-pocketed Uihlein backing but is a tremendously flawed candidate whose flaws we are all well aware of? Or is it Dorow, who has the name recognition and favorability that came from last fall’s high-profile trial, but who has not yet demonstrated the ability to be a strong campaigner and will face questions that she might not be ready for? It’s probably still Dorow, but it’s more of a debate now than it was a few short months ago. And either candidate is going to be especially vulnerable on abortion rights issues, having received endorsements from anti-choice groups.
The most likely outcome, in my estimation, is that it will be Protasiewicz vs. Dorow in the general election.
And after Feb. 21, when the primary is decided, that’s when things are really going to get wild, and the eyes — and wallets — of the political universe will turn toward Wisconsin.
Here we go again.
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Dan Shafer is a journalist from Milwaukee who writes and publishes The Recombobulation Area. He previously worked at Seattle Magazine, Seattle Business Magazine, the Milwaukee Business Journal, Milwaukee Magazine, and BizTimes Milwaukee. He’s also written for The New York Times, The Daily Beast, Heartland Signal, Belt Magazine, WisPolitics, and Milwaukee Record. He’s won 13 Milwaukee Press Club Excellence in Journalism Awards. He’s on Twitter at @DanRShafer.
Follow Dan Shafer on Twitter at @DanRShafer.