Democracy may finally be coming to Wisconsin, as Janet Protasiewicz defeated arch-conservative Daniel Kelly to flip a key seat on the state supreme court.
The Wisconsin Supreme Court has been a national embarrassment for years. This was the court where a justice tried to choke out one of his colleagues, after all. More recently, it was by far the court that came closest to endorsing Donald Trump's authoritarian campaign to overturn the 2020 election. Members of the conservative faction have since openly questioned the validity of President Biden's victory, putting them far outside even the conservative judicial mainstream and marking them as little more than partisan thugs.
Can you imagine the sort of totalitarian hellscape where the votes of the majority play essentially no role in determining who wins elections? pic.twitter.com/VScxrZV5CR
— David Schraub @schraubd@mastodon.lawprofs.org (@schraubd) July 8, 2022
And yet, even among this sorry bunch, Daniel Kelly would have stood out.
I first wrote about Daniel Kelly when he was initially appointed to the Wisconsin Supreme Court by then-Governor Scott Walker. He had made an argument comparing affirmative action to slavery, something that -- even restricted to the "civil rights programs are the new slavery!" field -- was jaw-dropping in its stupidity (and "civil rights programs are the new slavery!" is already a field saturated with stupidity).
Over the course of his career, and over the course of this campaign, Kelly has proven himself to be the definition of a mediocrity who's managed to fall upward via the beneficent hand of the right-wing gravy train. His academic pedigree is undistinguished. He had no judicial experience when he was appointed to the court by Walker in the first place, and after his (first) defeat he stayed plugged into Wisconsin GOP politics by providing legal advice to the effort to steal the state for Trump after Joe Biden's 2020 victory. And of course, all have now witnessed his petulant response to being defeated by Protasiewicz:
"I wish that in a circumstance like this, I would be able to concede to a worthy opponent," he said at an event held at the Heidel House Hotel in Green Lake. "But I do not have a worthy opponent to which I can concede."
Kelly called Protasiewicz's campaign "deeply deceitful, dishonorable and despicable." "My opponent is a serial liar. She's disregarded judicial ethics; she's demeaned the judiciary with her behavior. This is the future that we have to look forward to in Wisconsin."
Adding: "I wish Wisconsin the best of luck, because I think it’s going to need it."
[...]
"The people of Wisconsin have chosen the rule of Janet. I respect that decision because it is theirs to make," he said. "I respect the decision that the people of Wisconsin have made, but I think it does not end well."
If ever there was a definition of "lacking in judicial temperament," he personifies it.
Yet beyond that, Kelly is a familiar, if not archetypical figure. He is suffused with entitlement for that which he has not earned, and consumed by rage when he doesn't get it. There are thousands -- millions -- of men (almost always men) just like him. Most don't go on to become state supreme court judges, though many do bully themselves into positions far beyond their talents or capacities by a mixture of being useful to the right people and being an impossible menace when they don't get what they want. When they do, finally, see their upward fall arrested, they are incredulous and infuriated at the injustice of it all. Hell hath no fury like a mediocre White man scorned.
Indeed, perhaps Kelly's only mistake was being appointed to the Wisconsin Supreme Court instead of the Seventh Circuit Court of Appeals -- a position from which he could never be dislodged no matter how apparent it became that he was ill-suited for the position. On the federal bench, with life tenure, he could have prowled and fulminated and lashed out with impunity, forever; secure in the knowledge that it would be constitutionally impossible to ever hold him accountable. One can only imagine the law school classes he would have baited and berated.
But alas, Daniel Kelly is a creature of the state bench, and in Wisconsin, supreme court justices must meet the approval of the voters. Twice now, the voters have resoundingly rejected Daniel Kelly as unsuited for the role of state supreme court justice. Kudos to them. And while Democrats are celebrating Protasiewicz's win, the bigger winner is the small-d democracy that has been under siege in Wisconsin for far too long.
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