Breaking: Scott Walker Sounds the Alarm about Wisconsin’s Supreme Court Election

What's at stake in the upcoming Wisconsin state supreme court race? "Everything," former Wisconsin governor Scott Walker tells National Review in an interview. "In a word, it's everything."

What makes the April 4 election so consequential is that it's the first opportunity for progressives to gain a majority on the court in many years. Janet Protasiewicz, a Milwaukee judge and self-described "progressive" who advanced to the April 4 runoff election against former state supreme court justice Dan Kelly, is openly campaigning as a judicial activist. "The appeal she and her allies are making is this is their chance to undo everything that we've done over the past dozen years or so," says Walker. And that's not much of an exaggeration: As the New York Times reported in January, "Judge Protasiewicz argued that abortion should be 'a woman's right to choose'; said that Governor Scott Walker's 2011 law effectively ending collective-bargaining rights for most public employees was unconstitutional; and predicted that, if she won, the court would take up a case seeking to invalidate the Republican-drawn state legislative and congressional maps put in place last year."

After Walker signed Act 10, the law paring back the power of most public-employee unions in 2011, he beat back a Democratic backlash twice by decisive margins at the ballot box. Walker won a 2012 recall election by seven points and won reelection in 2014 by six points. Democrats struggled in both campaigns to point to actual harm done by the law, while Walker and his allies pointed to many success stories, including schools that were able to avoid teacher layoffs, expand curricula, or implement merit pay because of the reform. Walker lost by one point in the "blue wave" of 2018, but his conservative reforms have remained in place because the GOP retained control of the state legislature.

"We've seen something like $15 billion in tax relief since 2011," Walker says. "The most important thing we did with Act 10 was take the power out of the hands of a handful of union bosses and put it into the hands of the taxpayers and the people they duly elect. . . . Those things have saved millions and millions of dollars that schools were then able to reinvest into the classroom — in some cases rewarding exceptional teachers."

Now all that and much more could be undone by the state court. Walker says everything from the state's school-choice program to welfare reform and tax reform could be invalidated if the state supreme court decides to "be activist and just basically impose liberal doctrine."

But Walker says the issue that should be front and center in the campaign is criminal justice. "With an activist court, you could see a court that put in place new sentencing guidelines [and] get rid of cash-bail requirements," he says. "There's a number of examples of where [prosecutors] asked for prison time, and [Judge Protasiewicz] failed to rule on that."

As Daniel Bice reported on February 17 in the Milwaukee Journal Sentinel:

On at least three occasions, Milwaukee County prosecutors asked Milwaukee County Circuit Judge Janet Protasiewicz to sentence a felon to time in prison for harming a child.

Two of the cases involved adults convicted of sexually assaulting a minor, and a third was a mother who pleaded guilty to chronic neglect of her 16-year-old son after he died while weighing just 42 pounds.

In each case, Protasiewicz rejected the prosecutor's request, choosing instead to sentence the defendant to time served in jail, plus probation.

Activists "could impose their radical views when it comes to criminal sentencing, not just on the state supreme court, but all the courts in the state," says Walker. "The supreme court appoints the person who oversees the [lower] state courts."

Protasiewicz and her supporters prefer to focus on the issue of abortion because the state's abortion law that was in effect from 1849 to 1973 — and never repealed by the legislature — is now the subject of litigation in the wake of the Dobbs decision overturning Roe v. Wade, and the Wisconsin law includes an exception only for the life of the mother. Democrats focused heavily on the issue in Wisconsin in November, but voters rendered a split decision by reelecting Wisconsin GOP senator Ron Johnson and Democratic governor Tony Evers.

"An activist court could very clearly say that abortion on demand all the way until birth," including taxpayer funding of abortion, is a constitutional right, says Walker. The notion that the Wisconsin constitution actually contains within it a right to abortion is far-fetched: After it became a state in 1848, Wisconsin banned abortion after "quickening" in 1849 and generally banned all abortion (with an exception for when the life of the mother is in danger) in 1858. Wisconsin Democrats, who controlled the state legislature and governor's mansion as recently as 2010, never repealed the law when they had the power to do so.

"If you're intellectually honest about this, the last thing you want is the court to become super legislators," Walker says. "I'd love to not have a state income tax, as an example. I think that it would be up to the legislature and the governor to debate the merits of that idea. Certainly, the court should have nothing to say about that."

Walker says he appointed Dan Kelly to fill a supreme court vacancy in 2016 because he was "someone who understood that the ultimate objective of the judiciary is to uphold the constitution and those laws duly enacted within it. He understood that better than just about anybody I've ever interviewed."

But Kelly's opponents have suggested Kelly is a danger to the integrity of elections because after he left the court he provided paid legal counsel to the Republican Party of Wisconsin and the Republican National Committee as both entities sought to challenge the outcome of the 2020 election. Kelly's campaign spokesman has said that Kelly "provided legal counsel to several clients, amongst which were the RNC and RPW. It is a maxim in the legal profession that the views of clients are not attributable to their attorneys."

Andrew Hitt, former chairman of the Republican Party of Wisconsin, signed up to serve as an alternate Trump elector and testified to the January 6 committee that on December 7, 2020: "I specifically called [Dan Kelly] and asked whether or not he was in the loop on this alternate electors meeting. He said he wasn't." Hitt said he and Kelly "talked for about a half hour, kind of thinking through — thinking through the issues and if — what questions — you know, what other questions do I need to ask and think through." Kelly won't say what advice he provided to Hitt due to attorney-client privilege, but his spokesman told the Journal-Sentinel: "Justice Kelly believes Joe Biden is the duly elected president of the United States."

Walker says it is "categorically false" to suggest that Kelly would present any danger to the integrity of elections. If Democrats genuinely believed their attacks, they have a strange way of showing it. In the primary campaign, "Democrats also helped Justice Kelly by spending $2.2 million to attack his conservative opponent, Jennifer Dorow, a circuit court judge in Waukesha County," the New York Times reported this week.

The Times noted that Kelly "lost a 2020 election for his seat by nearly 11 percentage points — a colossal spread in such an evenly divided state," but the odds were stacked against Kelly in 2020 because there was a contested Democratic presidential primary held the same day as the state supreme court election. The more ominous electoral sign for Kelly and his supporters was that in the four-way primary earlier this week, progressive candidates garnered a combined 54 percent of the vote, while Kelly and the other judicial conservative in the race combined for 46 percent of the vote.

Walker worries that the supporters of Protasiewicz have done a better job of nationalizing the election. "Almost all the funding of the state [Democratic Party of Wisconsin] is coming in from the East and the West Coast," he says. "Within Wisconsin, I think the grassroots get it, but we're going to need people from across the country to wake up and realize the impact.

"The reason why this is important for people to pay attention to this election," Walker says, is that there would be "nowhere else to turn to to provide relief from their radical agenda." The next state supreme court election is in 2025, but the liberal up for reelection that year has been popular and easily won previous elections. If progressives take the court 2023, they could have a major impact on governance in Wisconsin for many years to come.

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Scott Walker Sounds the Alarm about Wisconsin's Supreme Court Election

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