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Court Races Turning Partisan

WI State Journal: Alexander Shut | Published on 1/9/2023

Over the next few months, Wisconsin’s Republican and Democratic parties, as well as outside political groups, will pour millions of dollars and thousands of hours in time into the April 4 race for the Wisconsin Supreme Court.

The calculus is simple: Groups with a vested interest in the outcome of political fights to come, from abortion to redistricting, know that — regardless of what happens between the Republican-controlled Legislature and Democratic Gov. Tony Evers — they have a good chance of getting their way if they can get their preferred candidate on the narrowly divided court.

The candidates — former state Supreme Court Justice Dan Kelly and Waukesha County Circuit Judge Jennifer Dorow, both conservatives, and Dane County Circuit Judge Everett Mitchell and Milwaukee County Circuit Judge Janet Protasiewicz, both liberals — may not explicitly identify as Republicans or Democrats. But their platforms, endorsements and talking points mirror the party that supports them.

“Our most closely-held constitutional rights are under attack by radical right-wing extremists,” Protasiewicz says on her campaign website, for example.

The Democratic Party of Wisconsin will spend millions and employ its most senior organizers to prevent large Republican donors from “buying a majority on the Wisconsin Supreme Court,” Democratic Party of Wisconsin spokesperson Iris Riis said.

In explaining her reasons for running, Dorow shared a quote by former Republican President Ronald Reagan and said Reagan is her daughter’s middle name before quoting conservative former Justice Antonin Scalia.

Saying liberals promote “judicial activists” to undo Republican reforms, former Republican Party of Wisconsin spokesperson Anna Kelly said conservatives “are rightfully motivated to elect judges who will interpret the law as written, protect our citizens, and not legislate from the bench.”

But not long ago, the races — now nonpartisan in name only — hardly attracted money or participation from Wisconsin’s most powerful partisan actors.

In 2003, outside groups spent $27,200 on independent expenditures in that year’s court race, according to the Wisconsin Democracy Campaign.

The partisanship of high court races skyrocketed in 2007 as Wisconsin Manufacturers & Commerce spent millions to help elect Annette Ziegler. Liberal groups responded with their own outside spending, according to Wisconsin Democracy Campaign executive director Matthew Rothschild. Altogether, outside groups ended up spending a total $3.1 million in that race.

In 2020, outside groups spent over $5 million on independent expenditures and ads, the Wisconsin Democracy Campaign found.

At this point, the nonpartisan label for high court races “just doesn’t make sense any longer,” said Alan Ball, a Marquette University history professor who analyzes the court.

With political gridlock between the Democratic governor’s office and Republican-led Legislature, many feel the surest way to get something done is through the court, Ball said.

But it’s harder to assert that the outside spending has changed how the court behaves, Ball said. If outside groups spend millions to replace a retiring conservative justice with another conservative, for example, that money likely wouldn’t lead to any clear changes in rulings, he said.

But there’s no denying the court has become more polarized, Ball said.

In the 2021-22 session, the court’s “three liberals voted together 88% of the time, and the three conservatives kept in step even more frequently, in 92% of the term’s cases,” Ball wrote on SCOWstats, a website that analyzes court data.

In that session, 54% of cases were 4-3 decisions, something that is “unprecedented in the three-quarters of a century surveyed by SCOWstats and is arguably the most striking feature of the 2021-22 term,” Ball wrote.

In the 2020-21 term, 37% of cases were 4-3 decisions. Between 1985 and then, 4-3 decisions never comprised more than 26% of the court outcomes.

Whether the court’s growing polarization springs directly from the increasingly partisan nature of high court elections remains unclear.

Court watchers suspect a link, but a “more systemic analysis” would need to be performed to show the extent to which the two are connected, Herbert Kritzer, the Marvin J. Sonosky Chair of Law and Public Policy at the University of Minnesota Law School, wrote in the scholarly journal Judicature.

“Given the increased political polarization over the last two or three decades, it should not be surprising that judicial elections are increasingly partisan,” Kritzer wrote.

The biggest recent increase in partisanship in judicial elections, Kritzer found, was in nominally nonpartisan races like Wisconsin’s. That’s because while partisan races have long attracted attention from parties and outside political groups, nonpartisan elections historically have not. The surge in political polarization across all realms has particularly affected those that didn’t originally have political associations, he said.