Janet Protasiewicz joined the state Supreme Court Aug. 1 — a watershed that partisans hope will signal the end of the state’s abortion ban, Republican redistricting, school choice, voter ID and even former Gov. Scott Walker’s signature Act 10, which prohibited collective bargaining for most state employees.
Some hope it could also mark the beginning of the end of hyperpartisan judicial elections and the beginning of a movement toward appointed justices instead.
Democrats — well aware of Protasiewicz’s overt support of abortion rights — are already laying the groundwork for challenges to the state’s abortion ban, the key issue in a spring election that cemented a liberal court majority for the first time in 15 years.
In June 2022, after the U.S. Supreme Court overturned Roe v. Wade, Josh Kaul, Wisconsin’s Democratic attorney general, quickly filed a lawsuit in a Dane County court seeking to ensure legal access to abortion.
Sheboygan County District Attorney Joel Urmanski, a Republican, filed a motion in December to dismiss Kaul’s suit. But earlier this month, Dane County Circuit Judge Diane Schlipper denied the dismissal and raised questions about the language of the state’s single law referencing the killing of fetuses, passed in 1849.
The law does not contain the word “abortion,” Schlipper said, interpreting the law as pertaining to instances of attacks or assaults on a mother resulting in the death of a fetus.
“There is no such thing as an ‘1849 Abortion Ban’ in Wisconsin,” Schlipper wrote.
Beyond the abortion issue, conservatives and Republicans are wondering how broad the attack on laws passed by a Republican majority Legislature will be.
“When you don’t know the extent of the battle you may have to fight, it’s concerning,” said attorney Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, told The Associated Press. “It’s very concerning.”
Lester Pines, an attorney from Madison who shares many of Protasiewicz’s political positions, told AP he believed opposition to lawsuits pushing the state leftward would bog down cases in the lower courts, maybe for years, before they were heard by a liberal majority state Supreme Court.
This sparring brings into sharp relief the question of taking the choice for state Supreme Court out of the hands of the general electorate and instead having a governor or an elected commission appoint justices with the approval of the Legislature.
As the Badger Institute pointed out in May, an appointment system backed by representatives elected by voters “does a good job of reflecting the preferences of the public over time without all of the negative atmospherics that we get with elections,” according to Brian Fitzpatrick, a Vanderbilt Law School professor who has studied the issue.
Governors in 26 states appoint state Supreme Court justices, some of them directly, but more often from candidates selected by an independent nominating commission. In some states, the nomination lists are binding, in other states they are not.
In only two states — South Carolina and Virginia — are state Supreme Court justices chosen by vote of the state legislature.
Mark Lisheron is the Managing Editor of the Badger Institute. Permission to reprint is granted as long as the author and Badger Institute are properly cited.
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