Janet Protasiewicz's politicking, record on bench disqualify her from Supreme Court

Watching the television ads or reading the mail the last few weeks, a voter could be forgiven for thinking their April ballot features a race for governor or senator, what with the constant references to hot button political issues like redistricting and abortion.

Let's start by remembering it is a judge that we are electing, a black-robed magistrate of integrity and intellect who should fairly decide the cases and controversies that come before them, not based on their personal values or political preferences but based on the law.

That’s the job of a judge, after all. In her confirmation hearing for the U.S. Supreme Court, Justice Sonia Sotomayor put it well: “[J]udges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases. It’s the law. The judge applies the law to the facts before that judge.”

Not every judge approaches the job that way, though. Judges are not interchangeable robots, and voters should not simply cast their ballots for whichever lawyer earned the highest GPA in law school. Rather, voters should ask whether a candidate for judge approaches the job of judging correctly.

This means three things: In criminal cases, it means recognizing and protecting the rights of the accused provided in the Constitution, and then ensuring that victims receive justice and the community is kept safe once guilt has been determined. In civil cases, it means applying contracts as written and ensuring those who violate the rights of others pay, but that lawsuits don't become a tool to harrass or seek jackpot justice. And in constitutional cases, it means giving full protection to the rights and liberties spelled out in the U.S. and Wisconsin Constitutions, but not inventing new rights not firmly grounded in the text, history, and tradition of those charters.

The records of the two candidates for Supreme Court make Dan Kelly the obvious choice on that standard. Janet Protasiewicz has been campaigning by sharing her “values,” telegraphing her political preferences to voters with a brazen audacity beyond anything we’ve seen in the modern history of the Wisconsin Supreme Court. And her record on the bench is equally disqualifying, displaying a consistent pattern of giving low bail and short sentences for violent criminals. No wonder sheriffs, district attorneys, and law enforcement unions are backing Kelly.

By contrast, Kelly’s four years of previous service on the Wisconsin Supreme Court show he is the right choice on Tuesday. In case after case, Kelly decided the questions presented based on the law as written. In two of them, he wrote opinions that are recognized nationally for their intellectual leadership. In Tetra Tech v. Department of Revenue, he sided with a taxpayer against agency bureaucrats, insisting that elected judges and not unelected government insiders must determine the meaning of the law. In McAdams v. Marquette University, he wrote a landmark defense of First Amendment rights, a pillar of protection for academic freedom at a time when free speech is threatened on many campuses. These and other opinions show his style: deeply thoughtful, carefully crafted, and committed to the Constitution. Which is exactly what we should want in a judge.

Much could be at stake in this election. On the one hand, if Kelly wins, it could be a fairly straightforward affair: smart lawyers will argue difficult cases, and Justice Kelly will resolve them based on the laws given to him by the Legislature and the people. If Protasiewicz wins, however, it could be transformational. A four-vote majority on the Court, untethered to text and zealous to overturn precedent, will be anxious for opportunities to strike down long-standing laws like the Act 10 reforms, right to work, and school choice. Reversing the precedents upholding these and other laws will substantially upset the status quo of our lives and our economy.

Voters should ask themselves: do we want to return to the early 2000s, when a judicially activist majority on the Court undid decades of settled law in four short years before voters put a firm stop to it in 2008. Or do we want courts that let elected the Governor and Legislature decide the policy questions facing our state as long as they stay within the broad boundaries marked out in our constitutions.

Daniel R. Suhr is an attorney in Cedarburg.

This article originally appeared on Milwaukee Journal Sentinel: Dan Kelly clear choice for a judge on Wisconsin Supreme Court.