The Dog that Caught the Bus

There is exquisite irony that then-Senate Majority Leader Mitch McConnell’s disreputable manipulation of Senate procedures — enabling former President Donald Trump to appoint U.S. Supreme Court Justices who thereupon overturned women’s federal Constitutional abortion rights — was likely a notable factor in Democrats retaining their Senate majority in 2022, perhaps costing Mr. McConnell, an octogenarian, his final opportunity to reclaim Senate Majority leadership.

The U.S. Supreme Court’s reversal of Roe v. Wade may well be Republicans’ political gift to Democrats that keeps on giving.

There are seven Justices on the Wisconsin Supreme Court.  Justices are elected to 10 year terms, and such races are nominally bipartisan.  As all who care are aware, in recent decades such races have become decidedly partisan and relations between the liberal and conservative state Justices frequently acrimonious.  Conservatives currently hold a 4-3 advantage.  The winners of the just-past February 21^st primary, Milwaukee County Judge Janet Protasiewicz and former WI Supreme Court Justice Daniel Kelly, are vying for a seat on the Court.  Ms. Protasiewicz is unabashedly the liberal candidate; Mr. Kelly, who lost to a liberal in his bid to stay on the Court in 2018, is clearly the conservative favorite.

The Protasiewicz-Kelly contest promises to be a tight race, with millions of out-state money contributed to both candidates.  Partisans on both sides are acutely aware that former President Donald Trump’s challenge to his 2020 Wisconsin electoral defeat – in which he sought to have disallowed a raft of absentee ballots in liberal Milwaukee and Dane Counties — was rejected in the Wisconsin Supreme Court by only a 4-3 margin that found Mr. Trump’s claims “unreasonable in the extreme.” Since the 2024 presidential race again seems likely to be razor-thin in Wisconsin, each party is wildly desirous of securing a majority on the state’s Supreme Court, which will probably be the final arbiter of any challenges to the initially-tabulated presidential election result.

Most now recognize that former Speaker of the U.S. House of Representatives Tip O’Neill’s famous adage, “All politics is local,” is no longer as true as it once was; the spread of media has nationalized our politics even down to the election of a state’s Supreme Court Justices and election officials.  That said, there is a local issue that I would suggest could, by itself, tip the balance in the WI Supreme Court election:  women’s right to abortion in Wisconsin. 

A Wisconsin state law, a vestige of the 1800s, prohibits abortion in the state.  At the same time, Marquette University polls indicate that a significant majority of Wisconsinites – over 60% — support a woman’s right to choose.  The Republican-controlled legislature has refused to allow a state referendum on the issue, presumably because the Republicans know how it will turn out. 

There can be little doubt that if elected, Judge Protasiewicz will vote for any legal rationale that enables women to obtain abortions in Wisconsin.  It seems just as likely that if elected, former Justice Kelly will uphold the current Wisconsin abortion prohibition.

I’m confident that Ms. Protasiewicz is surrounded by savvy political advisors.  If I were them – and it takes no prescience to suggest this – during her campaign stops, and in media advertising and literature, I would place relatively lesser emphasis on the potential impact that the Court’s composition might have on the state’s 2024 presidential election or the manner in which the Republicans have dishonorably gerrymandered the state’s legislative districts, and instead – not unlike the way U.S. WI Sen. Ron Johnson turned his 2022 race against then-WI Lt. Gov. Mandela Barnes into a referendum on crime – turn this WI Supreme Court contest into a referendum on abortion.

If Ms. Protasiewicz wins the seat, Mr. Kelly will rightfully be able to lay part of the responsibility for his defeat at the feet of Messrs. Trump and McConnell.

A significant majority of Republicans have wanted to overturn Roe v. Wade for about 50 years.  Their dog finally caught the bus.  At least thus far, it generally hasn’t gone that well.  We’ll see what happens this time.