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Wisconsin’s Ugly and Important Supreme Court Race

The acrimony continues to rise in the days leading up to the pivotal April 4 election.
March 29, 2023
Wisconsin’s Ugly and Important Supreme Court Race
The Wisconsin State Capitol and Milwaukee County Circuit Court Judge Janet Protasiewicz (Composite / Photos: GettyImages / Shutterstock)

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.

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.

Bill Lueders

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