This post originally appeared at https://www.badgerinstitute.org/abortion-voter-id-and-janet-protasiewicz/

What to watch for when the newest Wisconsin Supreme Court Justice is sworn in August 1

In the weeks leading up to the swearing in of liberal Janet Protasiewicz to the state Supreme Court next Tuesday in Madison, Democrats began laying the groundwork for challenges to the state’s abortion ban, the key issue in a spring election that cemented a liberal court majority for the first time in 15 years. 

The Badger Institute covered the politicizing of the election and a national shift to power struggles over a government branch that has historically avoided party politics. 

Protasiewicz eagerly embraced those hot-button political issues, making clear her position favoring abortion. Partisans who spent a state supreme court race record $8 million are actively hoping the new judge will have a role in casting a decisive vote on redistricting, school choice, voter ID and even rolling back Gov. Scott Walker’s Act 10, prohibiting collective bargaining for most state employees. 

In June, after the U.S. Supreme Court overturned Roe v. Wade, Josh Kaul, Wisconsin’s Democratic attorney general, filed a lawsuit in a Dane County court to insure legal access to abortion. 

Sheboygan County district attorney, Joel Urmanski, a Republican, filed a motion in Demcember to dismiss Kaul’s suit. Earlier this month, Dane County Circuit Judge Diane Schlipper denied the dismissal but in doing so raised questions about the language of the state’s single law referencing the killing of fetuses, passed in 1849. 

The law does not contain the word abortion, Schlipper said, interpreting the law as pertaining to instances of attacks or assaults on a mother resulting in the death of a fetus. 

“There is no such thing as an ‘1849 Abortion Ban’ in Wisconsin,” Schlipper wrote. 

Conservatives and Republicans who expressed to the Badger Institute their misgivings about a lefty activist state court told Associated Press earlier this week they aren’t sure how broad an attack on laws passed by a Republican majority Legislature would be. 

“When you don’t know the extent of the battle you may have to fight, it’s concerning,” said attorney Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, told AP. “It’s very concerning.” 

Lester Pines, an attorney from Madison who shares many of Protasiewicz’s political positions, told AP he believed opposition to lawsuits pushing the state leftward would bog down cases in the lower courts, maybe for years, before they were heard by a liberal majority state Supreme Court. 

This sparring brings into sharp relief the question of taking the choice for state Supreme Court out of the hands of the general electorate and having a governor or an elected commission appoint them with the approval of the Legislature. 

As the Badger Institute pointed out in May, an appointment system backed by representatives elected by voters, “does a good job of reflecting the preferences of the public over time without all of the negative atmospherics that we get with elections,” according to Brian Fitzpatrick, a Vanderbilt Law School professor who has studied the issue. 

Governors in 26 states (and in Washington, D.C.) appoint state Supreme Court justices, some of them directly, but more often from candidates selected by an independent nominating commission. In some states, the nomination lists are binding, in other states they are not. 

In only two states — South Carolina and Virginia — are state Supreme Court justices chosen by vote of the state legislature.

Mark Lisheron is the Managing Editor of the Badger Institute. Permission to reprint is granted as long as the author and Badger Institute are properly cited.

The post Abortion, voter ID and other laws awaiting Janet Protasiewicz appeared first on Badger Institute.