Apr 4, 2023

The critical race in Wisconsin.

The critical race in Wisconsin.
Screenshot: 12 WISN 

Plus, can Trump get a fair trial in Manhattan?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

We're covering the Wisconsin Supreme Court race. Plus, a reader asks if Trump get a fair trial?

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Covering Trump.

Yesterday, quite a few readers wrote in aggravated about my piece on Trump's indictment, with two main criticisms: 1) You shouldn’t be covering this before the indictment is unsealed. And 2) Some version of "you are wrong" about your reaction to the indictment. Somehow the piece managed to upset both my liberal and conservative readers, which in this case I'll take as a decent sign we highlighted good arguments on both sides.

I'm not here to change your mind about my opinion on #2. As for #1, the answer is simple: Not covering the first ex-president to ever be indicted would be journalistic malpractice, even if we covered it two weeks ago, and even if the indictment has not been unsealed.

We'll be kicking off a brief vacation tomorrow that coincides with Passover, Easter, and recess in Congress (more on this tomorrow), so this was a good way to give the story some coverage while we could. Of course, we'll revisit it in some manner once the details of the indictment are out, but ignoring this story would have been worse than repeating myself a little bit and, yes, even a bit of speculation. As always, I appreciate everyone's feedback and criticism, which I try to address whenever I have space.

Quick hits.

  1. The Justice Department is said to have more evidence of potential obstruction of justice by former President Trump at Mar-a-Lago, according to The Washington Post (The evidence). Separately, Trump is set to appear in Manhattan for arraignment on charges related to alleged hush money payments made to Stormy Daniels.
  2. Florida Gov. Ron DeSantis signed a bill allowing gun owners to carry a concealed weapon without a permit, making it the 26th state to pass such legislation. (The bill)
  3. The purported Chinese spy balloon that flew over the U.S. in February was able to collect intelligence on sensitive U.S. military sites and send it back to China, according to a new NBC report. (The report)
  4. Today, Finland officially joins NATO. The traditionally neutral country notably shares an 800-mile long border with Russia. (The agreement)
  5. House Speaker Kevin McCarthy (R) is expected to meet with Taiwan's Tsai Ing-Wen, a meeting China warned would have a "severe impact" on China-U.S. relations. (The meeting)

Today's topic.

The Wisconsin Supreme Court. On Tuesday, voters in Wisconsin will vote in an election that could impact not just abortion rights in Wisconsin and the split in the Wisconsin Supreme Court, but also the future of the state’s elections and even presidential elections in the U.S. more broadly.

The race is between Dan Kelly, a former state Supreme Court judge backed by Republicans, and Democratic-supported Janet Protasiewicz, who serves as a Milwaukee County Circuit Court judge. While the race is technically "non-partisan," it has drawn national attention and tens of  millions in funding from both major political parties.

Currently, the state court has a 4-3 conservative majority, as it has for the past 15 years. Recently, it has ruled against absentee ballot drop boxes and affirmed a 2011 law that ended collective bargaining for many public workers. The court also came within one vote of overturning President Joe Biden's narrow victory in the state in 2020, but conservative justice Brian Hagedorn voted with the liberal justices to affirm the results.

In this race, however, there has been an increased focus on abortion access and Republican-drawn congressional maps. The court is expected to rule on a lawsuit that challenges the state's 174-year-old ban on nearly all abortions, which went into effect after Roe v. Wade was struck down.

Some political pollsters also believe the fate of the House majority could come down to how the court rules on gerrymandering in its state. In 2022, the court upheld Republican-drawn maps that were largely considered to be some of the most gerrymandered in the U.S. Despite being a state that is relatively evenly split between Republicans and Democrats, Republicans hold  six of the eight Wisconsin congressional districts and have dominated the state legislature — two things that could potentially change with a Democratic supreme court majority.

(You can read our piece on the bipartisan gerrymandering crisis in America here)

“The policy direction of Wisconsin is going to be determined in large part by this Supreme Court race,” University of Wisconsin-Madison political science professor Barry Burden told the Associated Press. “Everything from abortion to disputes over the 2024 presidential election are going to land in the lap of this court. And the winner will be the deciding justice on these issues.”

As a result, more than $45 million has been spent on the race so far, the most expensive for a judgeship election in U.S. history.

Today, we're going to take a look at some commentary from the right and left about this race, then my take.

What the right is saying.

  • Many on the right criticize Protasiewicz for openly discussing her views, and emphasize the need to preserve Republican advantages in Wisconsin.
  • Some say national Republicans should be focusing more on Wisconsin and criticize the outside money pouring in from Democrats.
  • Others say Democrats are wrong that they can obviously retake the House if Protasiewicz wins.

The Wall Street Journal editorial board criticized Protasiewicz for pre-judging cases.

She "has publicly declared that she believes that former Gov. Scott Walker’s landmark 2011 collective-bargaining reform, known as Act 10, is unconstitutional. She admits she joined protests against the law and even signed a petition to recall then Gov. Walker.” In an interview last week, she "was asked whether she would remove herself from cases challenging the law," and said 'I’d have to think about it... Given the fact that I marched, given the fact that I signed the recall petition, would I recuse myself? Maybe. Maybe. But I don’t know for sure.'"

"Maybe?" the board asked. "How can anyone believe she’d be able to fairly judge a challenge to a law she has already reached a conclusion about? Judge Protasiewicz’s 'unconstitutional' comments are best read as an invitation to liberal groups to try again with a new challenge if she makes it to the court," and are "an admission that she won’t defer to the precedents of the state court she aspires to join... She has signaled the same about the state’s legislative maps, which she has called 'rigged,' despite their approval by the state high court."

In The Federalist, Shawn Fleetwood asked why Republicans were talking about 2024 and not the Wisconsin race this week.

"Rather than using their influence to draw attention to this critically important race," he said, "many prominent conservative figures have spent the latter half of March discussing the 2024 GOP presidential primary." This is a "remarkable spectacle to witness" when considering "the 2024 primaries don’t start for several months" and "Tuesday’s Wisconsin election will have reverberating impacts on national and state politics that will be felt for years to come."

This court has ruled "that the Wisconsin Elections Commission had violated state law by authorizing the use of unmanned absentee ballot drop boxes" and that "Democrat Gov. Tony Evers violated state law by imposing and extending multiple Covid-related emergency orders without authorization from the state legislature." Meanwhile, "Protasiewicz has shown herself to be a radical, soft-on-crime leftist" and has "outraised Kelly" more than 5-to-1. "Outside leftist mega-donors have also injected millions into the state to help the Wisconsin Democrat" while Republicans "are falling into the trap of prioritizing the next national election over state and local issues that can have lasting effects on the country."

In The Wall Street Journal, Collin Levy said Democrats are "seeking the House" with a win on the Supreme Court.

The race is being driven by "national Democrats" who think if they flip the court, "they can help flip the U.S. House." Judge Protasiewicz "said of the court that 'obviously, if we have a 4-3 majority, it is highly likely that we would be revisiting the maps.' In fact, it isn’t obvious," he wrote. "In 2021 Democratic Gov. Tony Evers vetoed maps drawn by the Republican-controlled Legislature, and the state Supreme Court sided with the governor.

"Lawmakers objected and appealed to the U.S. Supreme Court, which heard the cases in 2022. The high court approved the Evers congressional maps but struck down the Evers state legislative maps on grounds that they violated the federal Voting Rights Act." The legislative maps were sent to the Wisconsin Supreme Court, "which redrew them as instructed," and "Mr. Evers’s congressional maps were retained as is... But national Democrats now say the goal should be for a Protasiewicz Supreme Court to revisit all of them—including the ones written by their own Democratic governor and upheld by the U.S. Supreme Court."

What the left is saying.

  • Many on the left consider Kelly a threat to democracy and women's rights, and emphasize the importance of winning this race.
  • Some say this will be a test of the biggest electoral story lines in America right now.
  • Others say the race is becoming about abortion, which is helping Protasiewicz.

In The Atlantic, Ronald Brownstein called it the "first electoral test" after Trump's indictment.

This race "will likely decide whether abortion in the state is completely banned and whether the severely gerrymandered state legislative maps that have locked in overwhelming Republican majorities since 2011 are allowed to remain in place," he said. But it's also a "revealing test of the electoral strength of the most powerful wedge issues that each party is likely to stress in next year’s presidential race." Protasiewicz has "centered her campaign on portraying Kelly as a threat to legal abortion and an accomplice in Donald Trump’s schemes to undermine democracy—the same issues that helped Democrats perform unexpectedly well in last November’s elections.

Meanwhile, "Kelly and his allies have centered his campaign on presenting Protasiewicz as soft on crime, the same accusation that Republicans stressed in many of their winning campaigns last year," Brownstein said. "With the choice framed so starkly, in a state that has been so evenly balanced between the parties, Tuesday’s result will measure which of those arguments remains more potent, particularly among the suburban voters who loom as the critical swing bloc in 2024’s presidential contest."

In Slate, Dennis Aftergut and Kent D. Peterson said abortion is "turning the race blue."

In February, Protasiewicz won 46% of the vote "in a four-way race" and "nearly doubled the 24 percent of the vote taken by former Judge Dan Kelly." If those results hold in the general, "it will be just one more data point that voters around the country are furious with the Supreme Court’s decision overturning Roe v. Wade and are making their choices at the ballot box with that in mind. Protasiewicz said Dobbs was "the worst Supreme Court decision in decades" and "there’s a reason why that powerful condemnation struck a chord in Wisconsin."

The ruling "revived an 1849 Wisconsin law making abortion a crime. Democratic Gov. Tony Evers and state Attorney General Josh Kaul have sued to overturn it; that suit will ultimately find its way to the Wisconsin Supreme Court, where the vote of either Protasiewicz or Kelly will likely be the tie-breaker." And while Protasiewicz took the issue head-on, "Kelly has ducked questions on abortion and other issues, offering only catchphrases like saying that he will 'follow the law.'"

The Washington Post editorial board said this is the reason we should not have elections for judges.

The race "has become an unseemly spectacle that underscores why judgeships should never be on the ballot." At their only debate, "the two refused to shake hands." Kelly "tries to maintain the pretense that he hasn’t prejudged issues coming to the court, but he has previously written that abortion is 'a policy deadly to children,' and he spoke virtually at an event this month that featured a pastor who has advocated for creating an antiabortion militia,and has called the murder of abortion providers 'justifiable homicide.'"

This is a national problem, as "thirty-nine states choose judges at some level through elections"  and "nearly $100 million was spent on judicial races during the 2020 cycle... This Editorial Board has argued for decades against the perverse practice of electing judges. Studies show judges hand out longer sentences as elections approach because they don’t want to be attacked as 'soft on crime' and that they are more likely to rule in favor of their donors during election years... No matter who wins in Wisconsin on Tuesday, the rule of law will lose."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. You can also leave a comment.

  • We should not be electing judges.
  • Kelly's positions on the major issues here worry me more than Protasiewicz's.
  • Still, there is a lot to dislike about this entire race.

First, I'd like to throw my weight behind the above argument from The Washington Post editorial board (under "What the left is saying") that judges shouldn't be elected. This election is already a spectacle, and I imagine future elections will only be worse. We should not have political parties spending tens of millions of dollars and running television ads to influence how their preferred justices will rule on cases before those cases even appear before them. It is everything that is not supposed to happen in our courts.

Speaking of donors, I do think we should temper any national takeaways from this race. It certainly pits major issues at odds like abortion and crime policy, in which there is an obvious distinction between these two candidates, but the playing field is a little uneven. Democrats are beating Republicans in spending, and vastly outspending them on television. They seem far more focused on this race, so it's hard for me to tell if the results will be as much about true public sentiment as they are about Democrats' fundamental advantage in running a ‘get out the vote’ operation right now.

Speaking of those donors, it's not just Democrats, either: Republicans have massive mega donors throwing money into this race as well, though they are being talked about a lot less.

Given my concerns about gerrymandering, my support of those who affirm that the 2020 election was legitimate, and my belief that near-total state government bans on abortion are dangerous, I suppose supporting Protasiewicz should be a slam dunk. But there really is a lot to dislike in every direction.

As someone still holding onto my reverence for our institutions and our courts, Protasiewicz offering voters explicit declarations of her views is pretty astonishing. She is crossing lines that other justices that elevate to the state supreme court usually don't, while simultaneously claiming those views are simply her "values" and won't impact her decisions, which is... well, not very convincing. Potential judges simply shouldn't be making it so clear how they'll rule on cases they haven't seen.

And it's not like Kelly is much better. Sure, he toes the line more when interviewed, but he has also served as a paid legal adviser for the state's top abortion group and even the state Republican party. He was involved in at least some discussions about the fake elector plot to overturn the 2020 presidential election, and he hasn't exactly been coy about how he'd vote on these key issues. Part of me at least appreciates Protasiewicz's candor.

One ace in the hole for Republicans is that they managed to also get a few red meat issues on the ballot for the election, which could drive up turnout in a race where they are probably underdogs. One initiative would allow judges to consider a person's criminal history in setting bail, not just whether they are a flight risk. Another would open the door for making low-income people show proof they sought out work to receive welfare benefits. Both policies have broad appeal but could get the Republican base out to an election the GOP has otherwise seemed to be under-selling.

​​But, again, it's the existence of this race in the first place that really irks me. Part of the reason Protasiewicz is breaking so many norms is that there are incentives to do so. And in a more sane and constrained judicial system, Kelly’s extensive involvement in state politics would be disqualifying, too. We should all want a better functioning democracy in which overtly partisan judges aren’t the keys to winning elections or passing the legislation we want.

Your questions, answered.

Q: Do you believe it is possible for Donald Trump to receive a fair trial?

— Art from Cedar Park, Texas

Tangle: In Manhattan? No, probably not.

That's another problem with this whole affair that I didn’t even initially get into. Imagine if Marjorie Taylor Greene’s district in Georgia had a powerful district attorney who indicted Joe Biden for something. Would liberals really have faith that Biden would be judged fairly by a jury there?

Now consider this: Trump won just 12% of the vote in Manhattan. Greene’s opponent in 2022, Democrat Marcus Flowers, won 34% of the vote. So by that measure Manhattan is more biased against Trump than Greene’s district would be against Biden.

Once both sides fulfill their peremptory challenges of jurists, there could still be a lot of never-Trump people and rabid Trump haters on the jury. It is pretty much unavoidable, and I have no idea how a court can deal with the fact that jurors will already have deep biases about Trump.

Matthew Galluzzo, a former prosecutor in the New York County District Attorney's Office, put it this way to NPR: "If I had to pick which side to be on, and I had to win to save my life, I would probably choose to be on the prosecution's side simply because the jury pool in Manhattan is so incredibly against Donald Trump."

I think that just about sums it up.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

Gen Z aspires to work at Google more than any company in America, according to a new poll conducted by Axios. The survey was meant to better understand the companies that young Americans desire to work for in the future. Interestingly, second behind Google was the federal government (for both young Democrats and young Republicans), and then Apple. Young Americans were also asked what companies they thought were doing good in the world, and Patagonia took the top spot, followed by Google and then Tesla. Axios has the interesting results.


  • 46%. The percentage of the vote Janet Protasiewicz received in February's four-way primary.
  • 24.2%. The percentage of the vote Dan Kelly received in February's four-way primary.
  • 21.8%. The percentage of the vote conservative Jennifer Dorow received in February's four-way primary.
  • 7.5%. The percentage of the vote liberal Everett Mitchell received in February's four-way primary.
  • 38-38. The split in Wisconsin in a hypothetical Trump vs. Biden 2024 matchup, according to a new Marquette Law poll.
  • 24%. The percentage of Wisconsin voters who said they wouldn't vote or would vote for someone else in that hypothetical matchup.

The extras.

  • One year ago today, we were covering the Disney controversy.
  • The most clicked link in yesterday's newsletter: Our advertisement for The Progress Network.
  • A lot to do with politics: 61.5% of Tangle readers believe Alvin Bragg's indictment of Trump is politically motivated. 25.2% believe it isn't.
  • Nothing to do with politics: A four-legged robot that can play soccer on multiple terrains.
  • Take the poll: Who do you hope to see win Wisconsin's Supreme Court race? Let us know.

Have a nice day.

NASA has officially named the four astronauts for the next mission to the moon. The Artemis II team will be made up of three Americans (Victor Glover, Christina Hammock Koch and Reid Wiseman) and one Canadian (Jeremy Hansen). Artemis II will launch into space in 2024 for a lunar flyby before returning to earth. It is the first mission to send a crew to the moon since 1972, more than 50 years ago, and two more are planned after it which include lunar spacewalks and setting up a permanent base camp on the moon. Koch and Glover are set to become the first woman and the first person of color to set foot on the surface of the moon, according to ABC News.

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