Dan O’Donnell makes a comprehensive, compelling case that Supreme Court candidate Janet Protasiewicz isn’t just a radical leftist, she is a threat to the Rule of Law itself.
Feb. 23, 2023
Perspective by Dan O’Donnell
From @DanODonnellShow - Ultra-liberal SC Candidate Janet Protasiewicz is running not to be a justice, but to destroy the very concept of justice. Click To Tweet
Pundits and politicians alike have cast the six-week sprint to the Spring Election as a fight for the Wisconsin Supreme Court, but it is much deeper than that: It is a battle for the Rule of Law itself.
Does this state still want an independent, impartial judiciary that will fairly and dispassionately base its decisions on the facts presented before it? Or does it want to know years in advance how the most significant issues of the day will be decided?
Janet Protasiewicz, the ultra-liberal Milwaukee County Circuit Court judge who won Tuesday’s Supreme Court primary, offers Wisconsin that choice. She is running not to be a justice, but to destroy the very concept of justice.
As it has been understood for thousands of years of human civilization, justice is the “ethical, philosophical idea that people are to be treated impartially, fairly, properly, and reasonably by the law and by arbiters of the law.” If those arbiters—judges—cannot be impartial or, far worse, refuse to be impartial, then by definition there is injustice.
Put another way, “the complete independence of the courts of justice is peculiarly essential to a limited Constitution” and free society. Alexander Hamilton noted in Federalist No. 78 that the “independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people.”
So awesome is the power conferred upon the judiciary that the liberty of both the individuals who come before it and society as a whole hang in the balance of each ruling. Judges can with the bang of a gavel deprive one of his freedom or even his life and fundamentally alter for all the fabric of society. In the biggest trials or the smallest hearings, the implicit, unwavering, necessary trust is that they will be tried fairly; that everyone who seeks justice will find it in a court of law.
If that promise is broken and that sacred trust betrayed—even once—then the entire system cannot function and the fabric of society is ripped. Injustice anywhere is, after all, as Martin Luther King, Jr. famously warned, a threat to justice everywhere.
Nowhere is justice more threatened than in Wisconsin, where Protasiewicz has for months promised to abandon any semblance of impartiality for what Hamilton termed the “influence of particular conjectures.” As the deciding vote on what would be a 4-3 liberal majority, Protasiewicz is letting the entire country know that her mind is already made up on the most significant cases that will inevitably come before her.
“The Maps are Rigged”
She has first set her sights on Wisconsin’s state legislative district maps, which she aims to redraw to suit her political preferences.
“Let’s be clear here: The maps are rigged, bottom line, absolutely, positively rigged,” she said during a Supreme Court candidate forum in January. “They do not reflect the people in this state, they do not reflect accurately representation in either the State Assembly or the State Senate. They are rigged, period. I’m coming right out and saying that. I don’t think you could sell to any reasonable person that the maps are fair.”
Except for the justices of the United States Supreme Court, who ruled last March that the maps drawn by the Republican State Legislature in 2011 and modified only slightly using a “least change” approach by the Legislature in 2021 were constitutionally permissible. Maps submitted by Democrat Governor Tony Evers (a Protasiewicz ally), the Court held, were unlawfully racially gerrymandered. Naturally, Protasiewicz believes the US Supreme Court should be ignored and Governor Evers’ maps should be adopted, which she of course will if elected to the Wisconsin Supreme Court.
“I said the [Republican-drawn] maps are rigged,” she told Wisconsin Public Radio earlier this month. “I don’t think you could sell to any rational person that the maps are fair. Just look at them with the numbers in the Wisconsin State Senate (and) the numbers from the Wisconsin State Assembly. Just look at those numbers. You know that something is wrong.”
Even though the obviously rational minds on the United States Supreme Court declined first in 2018 and again last year to rule that Wisconsin’s maps were gerrymandered, Protasiewicz has repeatedly promised to strike them down.
Though she is careful to couch her language with the disclaimer that she “can’t say how [she] would rule on a specific case,” any reasonable person would be able to infer that a judge calling electoral maps “rigged” would reject them should a challenge to them come before her.
This represents a clear and shameless violation of Wisconsin’s Code of Judicial Conduct, the law that governs judicial ethics in the state.
“Our legal system,” the Code’s preamble begins, “is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us.”
When it doesn’t—when, say, a judge makes pronouncements that “manifest bias or prejudice inappropriate to the judicial office”—she violates the Code’s prohibition against making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office” with respect to cases, controversies, or issues that are likely to come before the court.”
A judge or judicial candidate, therefore, may not make “statements that commit the candidate regarding cases, controversies or issues likely to come before the court” or “make any public comment that may reasonably be viewed as committing [him or her] to a particular case outcome.”
By publicly and repeatedly saying “the maps are rigged,” Protasiewicz has plainly committed herself to striking down said rigged maps and in so doing has willfully violated the Code of Judicial Conduct.
A Promise Unlimited Abortions
As unethical as this is, it pales in comparison to her demagoguery and open politicking for the reinstatement of legal abortion in Wisconsin. In June, after the US Supreme Court overturned Roe v. Wade, Governor Evers and Attorney General Josh Kaul filed a lawsuit seeking to invalidate the state’s law outlawing nearly all abortions.
The existence of an open, active case that is currently working its way through the state court system and will undoubtedly reach the Wisconsin Supreme Court means that any statement by a sitting justice or candidate for the Court promising a vote one way or another is a blatant and deliberate violation of the Code of Judicial Conduct.
Janet seemingly can’t stop making such promises.
“Women have, for the last 50 years…relied on the Roe v. Wade case,” she said during a January interview with WKOW-TV. “They’ve relied on it to be able to make their own decisions regarding bodily autonomy.”
The presupposition, clearly, is that without Roe, women no longer have bodily autonomy and will thus suffer a great harm at the hands of the state if they are not legally allowed to have an abortion. Because of this, Protasiewicz sees it as her duty—not as an impartial arbiter of the law but as a defender of women—to rule in a manner consistent with what she has repeatedly called her “values” instead of the facts of a specific case before her.
This is a direct affront to the Rule of Law itself, as Protasiewicz is openly promising to be unfair in cases involving what she characterizes as “women’s rights and a woman’s right to choose.”
“What I would tell you is that [on] the bulk of issues, the myriad number of issues, there’s no thumb on the scale,” she said last month, “but I will also tell you that I’ll call them as I see them and I’ll tell you what my values are in regard to this particular issue because this issue is so critically important.”
Her values, as she has explained time and again, require her to uphold a “woman’s right to choose” and preserve her “bodily autonomy.” Because this is so critically important, she cannot keep her thumb off the scale and simply must rule in accordance with her own personal values and not the demands of the Constitution, the law, or prior court precedent.
This is about as dangerous a phrase as a judge could ever utter, as it reveals her to be nothing less than a would-be tyrant in a black robe, just waiting for a case to come before her that will allow her to impose her will on the people.
The Wisconsin Code of Judicial Conduct demands that “judges must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in [the] legal system,” but how is such a thing possible if the only ethical framework a judge truly respects is her own personal value system?
Delving into Dangerous Bigotry
Such hubris is even more alarming when it is paired with prejudicial views of individuals who may come before a court, especially when such bigotry is predicated on one’s race, gender, or religion. Protasiewicz’s values, chillingly, include a deep disdain for Evangelical Christians, as she has repeatedly confirmed on the campaign trail.
During a February appearance on the Up North News podcast, she attacked conservative candidates Kelly and Jennifer Dorow for attending Regent University Law School, which was founded by Evangelical leader Pat Robertson.
“You have a university that’s not particularly very highly rated,” she explained. “I don’t know why someone would choose to go there unless you have views that really align with the views that they have.”
Protasiewicz is so disturbed by the views that “they” have that she believes it “obviously raises some red flags.”
When asked to clarify this apparently deep-seated resentment of Christians during an interview shortly before the primary, Protasiewicz doubled down, telling TMJ4 TV that “people need to know what that university stands for. Does it raise red flags? Of course it does.”
As one would expect, holding such bigoted views runs afoul of the Wisconsin Code of Judicial Conduct, which holds that a judge may not “by words or conduct, manifest bias or prejudice, including bias or prejudice based upon…religion.”
Believing, as Protasiewicz admitted she does, that all graduates of an Evangelical Christian law school—or for that matter all Evangelical Christians—must necessarily think alike “in regard to that 1849 [Wisconsin abortion] ban, in regard to marriage equality” is a stereotype based on religion that doesn’t just violate judicial rules, but also the very notion of a fair, impartial justice system.
If she automatically ascribes negative traits to people of a certain religion, she cannot be trusted to fairly adjudicate cases involving people of that religion. If she promises years in advance that she will deliver a political win in a redistricting case that hasn’t yet been brought, she cannot possibly impartially rule on it once it is. And if she truly believes that there are just some issues that are so critically important that she must put her thumb on the scales of justice to ensure an outcome that aligns with her personal values, she should be believed.
Protasiewicz is a bigoted demagogue whose very candidacy is an affront to thousands of years of jurisprudence. If elected to be the deciding vote on the Wisconsin Supreme Court, she won’t just be a liberal activist; she will be the end of justice itself.