On Abortion, GOP's Tent Should Be Bigger

I'm the last person to be cheering the politicization of judicial selections. I'm old enough to remember the days when most judges were appointed for life (as they still are at the federal level), based in theory on stellar qualifications, when they were confirmed without giving their opinions on the cases they would decide, and when, even in states with elected judges, very few judges got their hands "dirty" by actually going out and raising money and running expensive campaigns for election.

But that's exactly what just happened in Wisconsin this week, and I found myself cheering from the sidelines.

It was a completely political election, and the only question was which side would win.

The answer was bright blue. This is the legacy of Dobbs. This is what happens when you overrule Roe v. Wade and turn abortion into a political issue. The Republicans have gotten what they wished for. They are being hoisted on their own petard, in this case, through judicial politics.

There were two issues in the race between Janet Protasiewicz, a liberal Milwaukee County judge, and Daniel Kelly, a conservative former Wisconsin Supreme Court justice who was trying to return to the bench. One was abortion rights. The other was political gerrymandering, which had given Republicans a supermajority in the legislature.

More than $40 million was spent on the race, much of it outside money. According to The New York Times, that made it the most expensive judicial election in American history.

On Wednesday morning, with 95% of the votes counted, Protasiewicz was ahead by a whopping 11 percentage points in a narrowly divided state, a landslide victory for a candidate who ran an intensely political campaign.

She did not shy away from making "my values" known. She was explicit about her support for abortion rights, which is subject to a state law ban. She denounced the Republican-drawn legislative maps as "rigged" and "unfair" and advocates have already announced plans to challenge them as soon as she is sworn in.

Her swearing in will shift the court from a 4-3 conservative majority to a 4-3 liberal majority; the other three liberal justices were reportedly together, embracing, at her victory party.

"Today's results mean two very important and special things," Protasiewicz said in claiming victory. "First, it means that Wisconsin voters have made their voices heard. They have chosen to reject partisan extremism in this state. And second, it means our democracy will always prevail."

There is a simpler way to put it. In a toss-up state, with Democratic money pouring in, the Republican anti-choice side got creamed. It was a partisan election, and the Republican anti-abortion side lost. In a classic, battleground state. Eleven points.

For decades, I wrote speeches about being one vote away from overruling Roe v. Wade. It didn't matter. It had to happen. And when it did, when states like Wisconsin had to turn to their own Supreme Court for protection, the votes are there. Wisconsin's abortion ban was passed in 1849, 70 years before women could vote, and is expected to be challenged in the state Supreme Court later this year.

The Republican Party could have embraced a bigger tent approach on the abortion issue. They could have made room for libertarians in the modern Republican party. They could have taken the hard edge off the culture wars, but they haven't and they won't and so long as they don't there is no avoiding the politicization of every vote.

This happened in Kansas. It happened in Wisconsin. It happened in the midterm. There is something real here, that turns what should be a wonk election for a Supreme Court judgeship into a landslide referendum on things that matter.