Boots & Sabers

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1930, 03 Mar 23

Rule of Law on ballot this April

Here is my full column that ran in the Washington County Daily News earlier this week:

Over the next six weeks, you are going to hear pundits and activists insisting that the Wisconsin Supreme Court election is a battle for the future of Wisconsin. They are right.


Judicial conservative Dan Kelly and judicial liberal Janet Protasiewicz have very, very different approaches to the law. Kelly, who previously served on the Wisconsin Supreme Court, has a track record of judicial humility in which he rules according to the actual wording of the constitution and the law irrespective of the outcome or his personal convictions.


His approach to the law is one in which he respects the rights and responsibilities of the people and their representatives in the Legislative and Executive branches of government. Kelly believes in the Rule of Law, in which the law is applied as written and a judge’s role is to ensure that the law is applied correctly.


The Rule of Law is the critical foundation of a free society and underpins Western civilization. The Rule of Law is the principle that all people, from prices to paupers, are subject to the same laws. As John Locke put it in his Second Treatise on Government, “freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.”


It is the Rule of Law that protects people from arbitrary tyrannical rule. In a society where the Rule of Law is in force, the role of a judge is simply to enforce the law as it is written. If the judge thinks that the law is wrong, a judicial conservative is bound by duty to apply the law anyway because it is the role of the legislature to change the law – not the judge.


Janet Protasiewicz has a very different approach to the law. Protasiewicz is proudly embracing the “progressive” (read: socialist) label and is sharing her opinion on all sorts of issues that may come before the court. She has said that the state’s electoral maps are “rigged,” that a woman’s right to abort her baby is a decision that should “be made solely by her,” that Act 10 is “unconstitutional,” and she has a long record as a Milwaukee County Judge of coddling hardened violent criminals – including child sex offenders. Protasiewicz’s approach to the law is to use her position as a means to reach outcomes that align with her personal values and convictions irrespective of what the law actually says. It is the kind of judicial activism that obliterates the Rule of Law.


As if to try to assuage concerns about her vocal activism, Protasiewicz said on “Capital City Sunday,” “What I will tell you is that [for] the bulk of issues there’s no thumb on the scale, 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 regards to [the abortion] issue, because this issue is so critically important.” In other words, Protasiewicz is telling us that when she considers the case before her to be critically important, as measured against her values, she is more than willing to put her thumb on the scales of justice.


This is the definition of judicial activism. This is not only grossly unethical, but also antithetical to the Rule of Law.


This election will decide the balance of the Wisconsin Supreme Court. If Kelly is elected, the court will have a majority of judicial conservatives who respect the Rule of Law. If Protasiewicz is elected, the court will have a majority of politically leftist judicial activists. It is that simple.


Under a politically leftist activist Supreme Court, we can expect them to put their thumb on the scales of justice when cases regarding the gun rights, victims rights, Act 10, school choice, right to work, criminal justice issues, election laws, and all of the other issues that are clearly written into the law by Wisconsin’s elected representatives. All of these issues are on the scale and are not safe under the rule of an activist court.


Is the future of Wisconsin on the ballot this April?


You bet it is.


1930, 03 March 2023


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