The most expensive state supreme court election in U.S. history has concluded. Milwaukee County Judge Janet Protasiewicz defeated former Wisconsin Supreme Court Justice Daniel Kelly last night for a 10 year seat on the Wisconsin Supreme Court. Majority control of the Court shifts to liberal Justices after 15 years of conservative dominance.
When more data is available, I’ll analyze the election in depth. For now, Justice Kelly’s concession speech is quite interesting. He spent the first few minutes extolling the virtues of his staff and supporters — fairly standard stuff. However, he made a fiery, unusual turn:
“And it brings me no joy to say this. I wish that in a circumstance like this, I would be able to concede to a worthy opponent. But I do not have a worthy opponent to which I can concede. This was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts. It was truly beneath contempt. Now I say this not because we did not prevail. I do not say this because of the rancid slanders that were launched against me, although that was bad enough.
But that is not my concern. My concern is the damage done to the institution of the courts. My opponent is a serial liar. She’s disregarded judicial ethics. She’s demeaned the judiciary with her behavior. And this is the future we have to look forward to in Wisconsin. I have been committed to the rule of law my entire career. I understand this to be the most fundamental, basic promise of civilization. And in its heart, it lives in the judiciary or nowhere at all. We’ve had this laid out plainly for us. We can have the rule of law, or the rule of Janet. And the people of Wisconsin have chosen the rule of Janet. I respect that decision because it is theirs to make.” (3:50–5:52)
Politicians are often gracious in their concessions speeches, despite how nasty the campaign was. As political analyst and former politician Joe Scarborough said this morning, “First of all, you should be gracious regardless of how ugly the race was because it’s not bean bag, as they say. It’s hard ball. If you’re going to step into a boxing ring, well, as I’ve told my family for years, expect to get your head knocked off a few. That’s the profession that you choose.” (1:00–1:22)
In Mr. Scarborough’s experience, political careers end when politicians can’t move on from election losses. I agree. Does anyone like it when a friend or acquaintance loses and refuses to move on? Usually, you either distance yourself from the person or the activity that causes this person to be a sore loser. Unfortunately, political consequences and ramifications aren’t as easy to avoid.
In our current era, graciousness is becoming a lost art. Refusing to contact your opponent to concede and attacking them in your concession speech is marginally better than refusing to acknowledge the results. It creates an attitude of bitterness which leads to denying the legitimacy of the electoral system. If voters believe that elections are unfair or rigged, then they refuse to participate or try to destroy the system, warping democracy beyond redemption.
Judge Protasiewicz didn’t attack or acknowledge Justice Kelly in her victory speech, instead focusing on her campaign and the path forward. Granted, that is much easier for the victor than the vanquished to do, but she could have responded in-kind after a nasty, expensive and divisive campaign.
Justice Kelly claimed that Judge Protasiewicz ran the most “deceitful, dishonorable and despicable campaign” for the courts. His campaign provides a “fact checking” page for the alleged falsehoods against him. It’s worth reading to get his perspective.
Many of the attacks against Justice Kelly centered around abortion. According to my research, the organization Wisconsin Right to Life objected to Judge Protasiewicz asserting that they had endorsed Justice Kelly for upholding the organization’s values:
“The endorsement of Justice Kelly is based on his judicial philosophy and not based on pledges to uphold any law or policy position. No conversations have been had about specific court cases or how he would rule in these cases.”
Justice Kelly acted as non-partisan throughout the campaign when in reality his sympathies almost always line up with conservative or Republican causes. Take the opening statement on his campaign website. He refers to himself as a “Constitutional Conservative” who will “apply the law as it is written” unlike his opponent, who will rule on her “political beliefs.” This argument was re-employed in his concession speech, in which he contrasted the “rule of law” with the “rule of Janet.”
In fact, constitutional and judicial conservatism are political beliefs. In this area, the Right has a tendency to paint itself as objective and beyond politics when in reality they simply subscribe to a different political philosophy than the Left. It’s akin to some conservatives or Republicans, such as former Packer great and alleged welfare fraudster Brett Favre, talking about taking politics out of sports and entertainment. To them, their politics and beliefs in sports are fine, even non-partisan. Problems only arise when those crazy liberals and Democrats insert their politics and beliefs. When it comes to the judiciary, constitutional and judicial conservatism are non-political, despite the fact they are mostly associated with the conservative movement and the Republican Party.
In regards to abortion, it’s not hard to make an educated guess how Justice Kelly would rule. There’s ample evidence of his pro-life stance, whether it be deleted blog posts or endorsements from groups like Wisconsin Right to Life. Wisconsin’s 1849 abortion law, the highest law in the state post Roe v. Wade, aligns with the beliefs and philosophy of Justice Kelly and his constituents, so it’s not a sacrifice for him to “respect the law” and leaving legislation to the legislature in regards to this issue.
While Judge Protasiewicz might not have been entirely accurate on the Wisconsin Right to Life endorsement, she wasn’t completely distorting the truth.
Justice Kelly argued that Judge Protasiewicz made several other falsehoods in their only debate in late March. It’s likely that the already nasty business of political campaigning was even worse in the most expensive state supreme court race in history. Let us grant that his opponent did engage in “deceitful, dishonorable and despicable” behavior, as often happens in partisan elections.
But let us also investigate any “deceitful, dishonorable and despicable” behavior from Justice Kelly and his allies. It’s reasonable to conclude that Justice Kelly “cherry picked” his opponent’s judicial record to make her appear soft on crime. Furthermore, Judge Protasiewicz’s campaign sent letters to TV stations asking for them to stop airing “false and harassing” ads from the Kelly campaign.
In short, Justice Kelly’s dramatic concession rhetoric isn’t proven out by the facts. Perhaps one campaign was worse than the other, but they both engaged in “deceitful, dishonorable and despicable” actions, following most elections in a partisan system.
Voters weren’t convinced by Justice Kelly’s attempting to sidestep abortion and other controversial issues. Going forward, the Right both in Wisconsin and across the country should abandon the growing tendency of refusing to concede or being gracious in an electoral defeat, along with pretending to be ‘neutral’ or ‘non-political’ in areas that they are the exact opposite.