Honesty and the Court

Here’s the way it’s supposed to work. A candidate for a judicial seat is asked a direct question about how she would rule on a hot button issue. The candidate demurs, instead talking in general terms about how her personal views will not impact her decisions. At the same time she winks and nods at all the right times, finding a way to signal to her supporters just exactly how she’s going to rule.

Those were the old days before intense partisanship seeped (well, it didn’t seep, it roared) into Wisconsin Supreme Court races. Now candidates are much more direct in how they answer those questions. A case in point is the leading liberal in the race to replace retiring Justice Pat Roggensack. When asked about how she might rule on a gerrymandering case if one was brought to the court, Janet Protasiewicz didn’t pull any punches. She said the current maps are “rigged.” And she has been similarly blunt about abortion, claiming that the recent SCOTUS decision overturning Roe v. Wade was, “fraught with judicial activism,” and that, “people should know what my values are in regard to women’s reproductive rights.”

That has created a little dust up over whether or not she’s violated the judicial code of ethics which states that candidates should not promise how they’ll decide any specific question. Protasiewicz has been careful not to say the magic words, “I will rule to overturn…” and so a Wisconsin State Journal review of her statements concludes that she hasn’t crossed the line.

Janet Protasiewicz is telling us just how she feels. Is that unethical?

No, but she has put her toes on it and she’s leaning over it. On the other hand, one of her conservative opponents, former Justice Dan Kelly, has huffed and puffed over Protasiewicz’s statements, saying that a candidate shouldn’t “import” his personal views into the courtroom. Seriously, man? Dan Kelly is not going to lug his personal views on abortion into the Court? Kelly is not going to rule in favor of Republican gerrymandering when, under the very same fact situation, he’d rule against Democrats if they did the same thing?

So, part of me hears Protasiewicz’s honesty as refreshing. She’s telling me how she’s going to rule on two vital issues that I care about and she’s doing so without quite violating the ethics rules. Kelly, on the other hand, is just bloviating about impartiality when in fact we know damn well that he’s already decided how he’ll rule.

The only member of the Court who really is impartial on major issues to any extent at all is Justice Brian Hagedorn. Hagedorn got elected as a conservative, but he has occasionally sided with liberals on important cases including one where Trump lawyers were trying to steal Wisconsin’s electoral votes. And that’s the real test. Will a justice, on a major issue before the Court, ever actually vote with the other side or contrary to their personal views?

It’s odd to say this, but I would double my respect for Protasiewicz if she got elected and then voted to uphold gerrymandering or the 1849 abortion law, two policies that I abhor. It would prove that she was actually doing what a Supreme Court Justice is supposed to do: read the law and decide a case based on the most compelling legal argument, despite their personal beliefs.

If there was a candidate in this race who I thought would do that I’d vote for that person in a second. But all four candidates have made it clear — some clearer than others — how they’re going to rule. So, it has really become just like a race for governor with the candidates laying out their policy positions as opposed to any meaningful judicial philosophy. Given that, in this “nonpartisan” election I’ll pick the Democrat.

Stay warm this weekend.


Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

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