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Politics


WISCONSIN’S UGLY AND IMPORTANT SUPREME COURT RACE

The acrimony continues to rise in the days leading up to the pivotal April 4
election.
by Bill Lueders
March 29, 2023 5:30 am
The Wisconsin State Capitol and Milwaukee County Circuit Court Judge Janet
Protasiewicz (Composite / Photos: GettyImages / Shutterstock)
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To paraphrase Forrest Gump, “Ugly is as ugly does.” The race over an open seat
on Wisconsin’s ideologically divided Supreme Court has gotten ugly.

How ugly? A right-wing news outlet is peddling accusations that the liberal
candidate in the race, Milwaukee County Circuit Court Judge Janet Protasiewicz,
physically abused her former husband and used “the N-word” in conversations
decades ago. The conservative contender, former state Supreme Court Justice
Daniel Kelly, is promoting these stories on his campaign website. He has called
the abuse allegations “credible” and said they “should be investigated.”

As the clock to the April 4 election ticks down, Protasiewicz (pronounced
“pro-tuh-SAY-witz”) is flooding the airwaves with commercial after commercial
accusing Kelly, somewhat more plausibly, of being an ideological extremist,
based on his pronouncements and affiliations. As I discussed in earlier
coverage, one of her ads faults Kelly for having defended “monsters” who
sexually abused children. The ad’s gravel-voiced narrator demands, “Do you want
someone like that”—a lawyer performing an essential and constitutionally
mandated role within our legal system—“on the Supreme Court?”

Spending commitments in the Wisconsin race had as of late last week already
topped $37 million, more than twice as much as any judicial contest in U.S.
history. Protasiewicz has trounced Kelly in direct campaign contributions,
taking in more than $14.5 million since January 1, 2022, including reported late
contributions, compared to his $2.7 million. Kelly has a slight edge in terms of
backing from outside groups, which as of March 27 had spent $12.3 million to
support Kelly or oppose Protasiewicz, compared to $10.2 million spent on
Protasiewicz’s behalf, according to the watchdog group Wisconsin Democracy
Campaign.

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The news outlet Wisconsin Right Now has reported that four people, including two
who agreed to be named, attested to seeing Protasiewicz physically mistreat her
then-husband, Milwaukee County Judge Patrick J. Madden. The couple was married
in 1997, when he was 70 and she was a 34-year-old assistant district attorney.
They divorced after ten months.

The first named source is Michael Madden, the late judge’s son, who said he saw
Protasiewicz push his father and slap his face with an open hand. Madden is a
twice-convicted felon who served more than three years in prison for conspiring
to distribute more than 200 pounds of marijuana. The other named witness is
former Milwaukee restaurateur Jonathan Ehr, a longtime friend of the Madden
family, who said he saw Protasiewicz “push and shove” Judge Madden. Ehr said
that when he asked the judge about the red marks he saw on his face and neck,
Madden replied, “Oh, she did that.”

Both men also claim to have heard Protasiewicz use the “N-word.” Michael Madden
said she did so in reference to people she encountered as a prosecutor in
Milwaukee County Children’s Court. Ehr, more vaguely, said he heard her use this
word in conversation with Judge Madden “but I don’t even know what they were
talking about at the time.”

Protasiewicz, who considers her first marriage“the biggest mistake I made in my
life” (she is now married to Gregory J. Sell, an attorney), calls these
allegations “an absolute lie, 100 percent,” telling the Milwaukee Journal
Sentinel that she is considering legal action. Said her spokesperson, Sam
Roecker, “These claims are completely false, devoid of proof, and are only being
made by a bitter, discredited, drug-dealing felon who will say anything to get
attention.”

The couple’s “hefty divorce file,” the paper reported, contains “no mention of
abuse or racial slurs.” Both of Judge Madden’s two other children, Mark Madden
and Sheila Casey, said they had no firsthand knowledge of abuse, although all
three children have accused Protasiewicz of taking advantage of their father
during their brief relationship. Michael Madden, the paper wrote, at first said
he never shared his concerns with the police or other family members, then
“changed his account to say that he did mention the alleged abuse to his
brother.” His brother, Mark, “declined to respond.”

I’m bringing up all of this detail because I think it does matter whether or not
a candidate for the state’s highest court is a domestic abuser who uses the
“N-word.” And I wanted to present enough of the evidence to show that any fair
assessment leaves room for not just reasonable but considerable doubt.

The only question that can be definitively answered is why the Kelly camp is
throwing these accusations into the campaign hopper, along with a relentless
barrage of ads portraying Protasiewicz as soft on crime. It’s the same reason
that Protasiewicz ran her cheap-shot ad suggesting that Kelly was wrong to have
represented a couple accused of molesting children.

It’s because they want to win.

Who most deserves to win is an entirely different matter.

--------------------------------------------------------------------------------

Last week, during their only scheduled debate, the two candidates traded
accusations. “My opponent has told sloppy and irresponsible lies,” fumed Kelly.
Protasiewicz called Kelly “probably one of the most extreme partisan characters
in the history of the state” and “a true threat to our democracy.”

Protasiewicz, who spent 26 years as a prosecutor in Milwaukee County before
being elected to the bench in 2014, ripped the ads being run by Kelly and his
supporters that portray her as a coddler of criminals. “I haven’t sentenced
hundreds, but I have sentenced thousands of people,” Protasiewicz said at the
debate, sponsored in part by the State Bar of Wisconsin. “It’s interesting that
a handful of cases have been cherry-picked and selected and twisted, and
insufficient facts have been provided to the electorate.”

Kelly, who was appointed to the court by Republican Governor Scott Walker in
2016 and lost his bid for election in 2020, defended the ads, saying that the
cases cited were not aberrations but “representative” of her sentences overall.
(Actually, one review of Protasewicz’s appeals court rulings and sentences
identified several instances where higher courts found that she had improperly
denied motions by defendants—that is, she was found to have been too hard on
them—and none where she was deemed too soft.)

When asked about her ad attacking Kelly for representing “monsters,”
Protasiewicz replied that its purpose was “to point out the hypocrisy of my
opponent” for “going around the state telling people that I’m not tough on
crime. My record belies that.”

Kelly, in response, pounced:

> Thank you for your frankness. I appreciate that. So what you’re telling the
> state of Wisconsin is that when I tell people about what you’ve actually
> done—the sentences that are a matter of public record that they can look
> up—that your response to that is to lie about me, to slander me, and not only
> slander me, but slander all attorneys who handle criminal defense cases. What
> you’re telling them, what you’re telling all the people of Wisconsin, is that
> you believe that criminal defense attorneys only take the cases because they
> like the crimes their clients were accused of committing. So your response to
> an accurate, fact-filled, truthful exposé of your judgments, Janet, has been
> to lie and slander.

Get the picture? Even here, where he has valid grounds for grievance, Kelly
takes things to extremes.

--------------------------------------------------------------------------------

At the debate, Kelly claimed that Protasiewicz, if elected, will “forever
afterwards be known as being bought and paid for by the Democratic party in
Wisconsin,” because it has donated to her campaign. She has vowed to recuse
herself from any lawsuits involving the party.

In contrast, Kelly contends that his own deep partisan connections are
completely benign and irrelevant. But Kelly ran his failed 2020 campaign out of
the state Republican party’s offices and was paid $120,000 by the GOP over the
past two years for services that include giving legal advice to participants in
the plot to steal the 2020 election for Trump by convening a slate of fake
electors. His current campaign is getting communications and research help from
the party. Kelly has not promised to step aside from deciding cases involving
the Republicans.

Kelly is a hardcore religious conservative who has consistently allied with the
right, including his past leadership role with the Federalist Society in
Milwaukee. He has compared affirmative action to slavery and derided those who
receive Social Security and Medicare as “people who have chosen to retire
without sufficient assets to support themselves.” (Protasiewicz uses this in a
TV ad, with one of the featured seniors responding, “What a jerk.”)

On March 21, the day of the debate, Kelly appeared remotely at an event starring
a right-wing pastor, Matthew Trewhella, who has described the 1993 murder of an
abortion provider in Florida as “justifiable homicide” and called for the
formation of anti-abortion militias. At the event, Trewhella likened COVID-19
mandates to the Holocaust and warned that unless “good men and magistrates”
unite in opposition to such evils, “It will be too late and then bloody
revolution is the only option left.” (Kelly’s spokesman, Ben Voelkel, said the
former justice “did not hear the comments by another guest speaker, nor does he
condone calls for violence of any kind.”)

On March 22, Kelly also posed for a video plug with Scott Presler, a
conservative activist from Virginia. Presler was involved in planning several
“Stop the Steal” rallies after the 2020 election. He attended the January 6th
insurrection at the Capitol, calling it “the largest civil rights protest in
American history.” Presler, in his video with Kelly, calls the Wisconsin Supreme
Court race “the most important election in America right now,” and urges viewers
to give money to Kelly’s campaign.

Kelly told Scott Bauer of the Associated Press that he was “not really familiar
with [Presler’s] background” but welcomed his support. “I appreciate a great
deal the work that he’s doing here in Wisconsin,” Kelly said, noting that
Presler has more than a million Twitter followers. “I think it is invaluable.”

Asked whether he was not bothered that Presler was present at the Capitol during
the events of January 6th, Kelly said he was not. “Everybody’s got a background.
Everyone’s got a history. And I don’t ask people to sit for an examination
before they help me.”

An astonishing three-quarters of Milwaukee Bar Association members who had an
opinion last week rated Kelly as “Not Qualified” for the supreme court.
Protasiewicz was deemed “Qualified” by 86 percent of respondents.

--------------------------------------------------------------------------------

Both sides are right about the importance of the April 4 election. A lot of
things in Wisconsin could change if Protasiewicz wins and liberals obtain a
Wisconsin supreme court majority for what Marquette University history professor
Alan Ball told me would be the first time in at least four decades. The state’s
2011 law that eviscerated the bargaining rights of public employees could be
revisited. And the door would be open to fresh challenges to the extreme
gerrymandering that has allowed Republicans to retain a lock grip on the
legislature, garnering two-thirds of seats in an otherwise equally divided
state. Protasiewicz has called the maps “rigged”; Kelly was hired by the GOP to
defend them.

But more than any other issue, this race is about abortion. The next court will
decide a legal challenge to the state’s 1849 law that has, since the Dobbs
ruling overturning Roe v. Wade, brought about an end to legal abortion in
Wisconsin.

Kelly, during the debate, pointed to the backing Protasiewicz has received from
supporters of reproductive rights including Planned Parenthood and EMILY’s List.
“Why would they be spending so much money on your behalf, unless they expect you
to strike down that ban?” Kelly asked.

Protasiewicz replied that, “any decision that I render will be made based solely
on the law and the Constitution. I have told everyone, ‘I am making no promises
to you, no promises.’” But if Kelly is elected, she added, “I can tell you with
100 percent certainty: That 1849 abortion ban will stay on the books.”

Kelly reacted indignantly (“You don’t know what I’m thinking about that abortion
ban”), but Protasiewicz is right. This is a guy who has called abortion “a
policy that has as its primary purpose harming children.” He is endorsed by
several anti-abortion groups and done legal work for one of them, Wisconsin
Right to Life, whose legislative director said at an event last year before the
Dobbs ruling was handed down that removing the 1849 anti-abortion law’s
exception for saving the life of the mother was a priority for the group if Roe
were to be overturned.

What is the point of pretending that the minds of both contenders are somehow
not made up on this issue? Protasiewicz is highlighting abortion because of
course she would vote to strike down the ban, just as Kelly would, if elected,
embrace whatever interpretations of the law it takes to keep abortion illegal in
Wisconsin.

A little honesty, please.

--------------------------------------------------------------------------------

In 2016, when Kelly turned up on a list of finalists for the appointment to the
supreme court over several objectively more qualified candidates, I wrote about
some of his extreme statements—including his bitter reaction to the U.S. Supreme
Court’s 2013 decision allowing same-sex couples to wed, which he said “will
eventually rob the institution of marriage of any discernible meaning.”

Last month, not long before the primary in which Kelly edged out another
conservative for the right to appear on the April 4 ballot, he gave a talk to
the Dane County Republican Party at a restaurant across the street from the
state Capitol in Madison. In the Q&A afterward, I asked him whether he still
believed those remarks. “Do you think that has happened—that marriage is being
robbed of any discernible meaning?”

Kelly did not even try to answer my question. He said that as a judicial
candidate he was not supposed to talk about things like this and that it wasn’t
relevant to how he would decide cases. Then he launched an attack on
Protasiewicz, claiming “She says that she will put her thumb on the scale to
decide cases, she will substitute the law with her personal preferences.”

After Kelly spoke, we both left the meeting. I stepped outside just as he was
also walking out. “You didn’t answer my question,” I noted. We spoke for a few
minutes. My tape recorder was off. I kept asking him whether he still believed
that letting same-sex couples wed endangered the institution of marriage. Can he
admit, looking back, that the destruction of marriage as an institution has in
fact not happened, as he predicted it would? Does he think, against all
evidence, that it still might?

Kelly would not answer, even off the record. Maybe after the election, he said,
over drinks.

I can hardly wait.

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BILL LUEDERS

Bill Lueders, former editor and now editor-at-large of The Progressive, is a
writer in Madison, Wisconsin.
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