The incredibly nasty race for the pivotal vacancy on the Supreme Court across Lake Superior and the St. Louis River in neighboring Wisconsin — which is coming to a head on Tuesday, April 4 — is a testament to the much more civil, respectful, and tame judicial election campaigns here in Minnesota.
Although called nonpartisan, the Wisconsin race really pits two advocates with strong partisan backing: Janet Protasiewicz, a liberal Milwaukee judge, and Daniel Kelly, a conservative former state Supreme Court justice who was ousted in 2020. Their campaigning has left a trail of carnage in the Badger State.
The outspoken Protasiewicz has taken a very strong stand in favor of reproduction rights and against Republican-generated gerrymandering, two key issues coming before the Wisconsin judiciary. The more laconic but sharp-tongued Kelly has lambasted Protasiewicz for speaking out on those issues, in contravention of protocols that purport to restrict judges from stating their positions on issues that might come before them.
That conflict, simmering for the past several weeks, reached a new nadir at the only debate, one characterized by an unusual degree of hostility, even for bitter quasi-policy judicial races in the state; it was so bad that the candidates would not even shake hands.
Some of the brutal brickbats tossed by the combatants included Protasiewicz’s accusation that Kelly’s election poses “a true threat to our democracy,” which the former justice countered by saying she “has told sloppy and irresponsible lies.”
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In addition to national attention, the contest has attracted much money, with more than $10 million spent by or for Protasiewicz on television ads alone, which is more than 20 times as much as Kelly, who got a late and slow start in fundraising from conservative backers.
But there seems to be more involved than just a legal tussle. As the New York Times described it, the “searing attacks” by each side represent “a hostile cultural clash.”
Both Wisconsin and Minnesota share a common feature: Like 37 others, the two states’ judges are elected by voters, although vacancies are filled by gubernatorial appointments. But there the parallels part ways.
Contrast the antagonism next door with Minnesota, where judicial races are truly nonpartisan, although the stakes here are as great. Leading judicial candidates, both incumbents and challengers, proceed in a much more dignified and mild manner with greater decorum and probity in Minnesota. That benefits not only the judiciary, but also voters.
Minnesota has had, to be sure, contentious court campaigns and even some relatively close elections of late, which is not necessarily bad. But the contests have been far less acerbic and personalized than this one in Wisconsin, and none of the seven justices in the Supreme Court in generations or any of the 19 intermediate Court of Appeals jurists have been defeated.
The only major legal battle occurred in 1992 when former Vikings star Alan Page successfully sued to be entitled to run for a spot in the court. The Hall of Fame footballer won his case — and at the ballot box. He served with distinction until his mandatory retirement at age 70 in 2015, despite being at the height of his judicial prowess. His lawsuit, Page v. Carlson, concerned a legal issue over filling a prospective vacancy on the tribunal, ironically involving the 70-year-old retirement requirement of a sitting judge, and was not imbued with personalized issues, invectives, and other calumny surrounding the current Wisconsin imbroglio.
Incidentally, Minnesota was the source of a ruling by the U.S. Supreme Court in 2002, in the Republican Party of Minnesota v. White, which expanded the rights of judicial candidates to speak out generally on issues that might come before them by reining in, on First Amendment grounds, the so-called “announce rule” that proscribed judicial candidates from stating how they would rule on matters coming before them. Some professional protocols do still ostensibly restrict them from stating their position on particular matters in pending or prospective cases.
Notwithstanding that case, Minnesotans have not had to endure the enmity that is going on next door in Wisconsin, where the carnage of the current campaign to break the 3-3 deadlock on that tribunal is a reflection of the deep partisan-based split within the judicial system in that state.
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The Minnesota judiciary has its flaws, not devoid of some internal bickering. But partisan and pugilistic judicial campaigning, which then seeps into the post-election behavior and decision-making of the judges, is not one of them.
Thankfully, we have been spared that on this side of Lake Superior and the St. Louis River — so far.
Marshall H. Tanick is a constitutional law attorney in Minneapolis and a regular contributor to the News Tribune Opinion page.
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