Megan Shanahan: An open letter to Wisconsin

Published 12:00 am Thursday, May 18, 2023

All politics is local, except when it’s not. Media coverage of Wisconsin’s recent Supreme Court election was overwhelming. As is the politics of today, the all-too-familiar cycle repeated itself: partisans hyperventilated, political pundits offered their “analysis,” and the average American was left wondering, “how does this affect me?”

Last month, liberal Judge Janet Protasiewicz defeated conservative and former Justice Daniel Kelly for a seat on the Wisconsin Supreme Court. It’s the highest appellate court in the state of Wisconsin. Why should Ohioans care about a Wisconsin judicial race? It’s not because a liberal defeated a conservative. It’s not because it changed the ideological balance of the court. It’s not because this was the most expensive judicial election in U.S. history, where an eye-popping $42 million was spent. 

It’s because the winning candidate junked the cornerstone of the American judicial system: impartiality. 

Email newsletter signup

The Wall Street Journal in its March 28, 2023, editorial, (Wisconsin’s Supreme Court Stakes) pointed out that prior to being a judge, Janet Protasiewicz had publicly declared a current Wisconsin law to be unconstitutional, and went so far as to join protests, and sign a petition to recall the governor that sponsored the legislation. When asked by the Milwaukee Journal Sentinel whether she would recuse herself as a supreme court justice from hearing cases challenging this law, she answered, “Maybe. Maybe. But, I don’t know for sure.”

After hearing this, how would you feel if you were a litigant in Judge Protasiewicz’s courtroom? Maybe, not so great. To be fair, she wasn’t a judge when she protested the law and made those statements — she was an advocate. Strong advocates are not impartial. Fair judges are required to be. 

Judge Protasiewicz has strong opinions. And that’s fine. What’s not fine, is having strongly formed opinions about how cases should be decided before they reach your courtroom. For example, at a recent campaign event she called Wisconsin’s legislative maps “rigged.” When a judge complains about the types of cases that are being filed, she’s made a judgment about their validity before even hearing the evidence. 

However, there’s a rich tradition that Judge Protasiewicz could’ve drawn from to avoid this type of polarization. For over 200 years,  American judges have declined to pre-judge cases or issues that are before them, or are likely to come before the court. This tradition is on display every time a vacancy occurs in the U.S. Supreme Court. 

Those nominated for the Supreme Court undergo a rigorous confirmation process before being appointed to our country’s highest court. Senators grill the nominees on their legal knowledge and experience. They frequently craft their questions in such a way, so as to try to get the nominee to declare how they will rule on future cases. 

In the summer of 1993, confirmation hearings were held to consider the nomination of then Judge Ruth Bader Ginsburg. Before being questioned by senators, Judge Ginsburg delivered a prepared statement. She said, “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” Translation: judges shouldn’t pre-judge cases. 

As a judge in Ohio, I’m required to follow the Ohio Code of Judicial Conduct. Its first principle states, “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Simply put, judges must be open-minded.

In 1788, Alexander Hamilton’s The Federalist Papers No. 78 “The Judicial Department” was published by a New York newspaper. Hamilton extolled the importance of an independent judiciary and the impartial administration of the laws. Two judges can read the same law and form two different interpretations. Judges have different judicial philosophies, and there’s nothing wrong with that. What is wrong, is when a judge preemptively and publicly declares one side of the argument is not worthy of debate. 

The American judicial system is the gold standard for the world. Our republic survives in part because we believe in the rule of law. Fairness. It’s why foreign companies locate in America. Our judicial system is stable, predictable, and impartial. Everyone gets their day in court.

But, in Judge Janet’s courtroom she’s already made up her mind. Too bad for you, if your side of the issue isn’t on her pre-approved list. This type of provincial thinking is better suited for the choreographed world of cable news or worse yet — social media. 

In October 2022, Gallup reported that trust in the judicial branch of the federal government dropped to 47%. This same poll showed Americans have more trust in their state and local governments. Sadly, Americans may come to find that this trust was misplaced, if Judge Protasiewicz is the new model for state justice. 

Federalist No. 78 was addressed, “To the People of the State of New York.” Today, had Hamilton addressed it, “To the People of the State of Wisconsin” it would be marked: RETURN TO SENDER. 

Megan Shanahan is a Hamilton County Common Pleas Court judge and candidate for the Ohio Supreme Court in 2024.