Issue 7: 2023 State Supreme Court Elections Preview

December 6, 2022 By Kyle C. Barry

Updates to Behind the Bench: Professional Diversity & State Supreme Courts

Each state page and the Vacancies & Elections page on Behind the Bench now reflect all current and future vacancies that require governor appointment and the lone state supreme court election in 2023 (it’s a big one, and there’s more on it below). We’ll have a full update on national professional diversity data in January when justices elected in the November 2022 elections are sworn in.

Vacancies By The Numbers

Vacancies & Elections

2023 Preview: What’s Next For State Supreme Court Elections
The 2022 elections were critical for state supreme courts, with partisan control at stake in several battleground states and the looming reality that, as the U.S. Supreme Court marches aggressively rightward, whether anyone besides gun owners and the Christian Right enjoys constitutional rights increasingly depends on state constitutions and how state courts apply them. 

After last month’s results, Democrats increased their majority on the Illinois Supreme Court (the court will be 5-2 Democratic) and preserved their slim, one-seat majority in Michigan, while Republicans retained their majority on the Ohio Supreme Court and, perhaps most consequentially, took a 5-2 majority on the North Carolina Supreme Court. It will be the first Republican majority on North Carolina’s high court since 2016, erasing what just two years ago had been a 6-1 Democratic stronghold

There will be just one state supreme court election in 2023 (including retention elections, of which there are zero), but the stakes remain high. Partisan control of Wisconsin’s supreme court will turn on the election to replace retiring Republican Justice Patience Roggensack. While technically nonpartisan, the court now has a 4-3 conservative majority — with generally conservative Justice Brian Hagedorn serving as an occasional swing vote. An open primary on February 21 will decide the two candidates who advance to the April 4 election.

For years, control of Wisconsin’s high court has been the subject of pitched battles matching the rising intensity of D.C. nomination fights. In 2020, I wrote in Bolts Mag how

Over the last dozen years, the Wisconsin Supreme Court has been in the midst of a heated power struggle, with enormous stakes for statewide policy. The court has been a battleground for many of the state’s most important and contentious disputes, from labor rights to election law to education policy

Amid massive outside campaign spending on both sides and especially negative campaigns, the court has shifted, as Lincoln Caplan wrote in the New Yorker in 2015, “from a congenial, moderately liberal institution into a severely divided conservative stronghold.” Conservatives have held a court majority since 2008[.]

That year, Justice Dan Kelly, whom Republican Governor Scott Walker had appointed to the court in 2016 and Trump later endorsed, lost to progressive challenger Jill Karofsky. Three years later, Kelly is back, this time running against (so far) three former prosecutors: Dane County Judge Everett Mitchell; Milwaukee County Judge Janet Protasiewicz; and Republican Waukesha County Judge Jennifer Dorow, who is running as a “judicial conservative.” 

Kelly, who has likened social security and affirmative action to slavery (“morally, and as a matter of law, they are the same,” he said), has made a career out of conservative activism. In private practice he represented Republicans in the Wisconsin state legislature, including in lawsuits over legislative redistricting in 2010, and he has worked for conservative nonprofits such as the Institute for Reforming Government and the Kern Family Foundation. 

In his prior stint on the court, Kelly was a decidedly pro-prosecution justice:

Kelly was in the majority of every criminal case the court decided [in the 2018-2019] term, when prosecutors won 14 of 16 decisions. The court divided—that is, was not unanimous—in seven criminal cases, providing opportunities to identify fault lines within the court and compare the relative views of individual justices. Of those seven cases, Kelly cast his vote in favor of prosecutors six times.

It is no surprise, then, that when Kelly had to defend his seat, he resorted to the sort of baseless, Willie Horton-style accusations that have since saturated our national discourse on politics and public safety—and that have long been used to keep both state and federal courts topheavy with former prosecutors. In 2020

he and his supporters . . . deployed hackneyed fearmongering tactics, attacking Karofsky as “soft on crime.” The Republican State Leadership Committee released attack ads, replete with ominous music, saying that, as a “prosecutor, Karofsky even went easy on criminal predators, like no jail time for a monster who sexually assaulted a 5-year-old girl.” The ad refers to a case that Karofsky had nothing to do with, however, as the fact-checking website PolitiFact established. Kelly’s campaign has also accused Karofsky of “letting hardened criminals off easy,” including by showing compassion when she sentenced a man convicted of first-degree murder

In that case, Karofsky could have sentenced the man to life in prison without any chance of release, but she allowed him to petition for parole after 20 years—when he will be 81 years old.

New York Commission Names Seven Finalists For Chief Judge

New York’s next chief judge will be one of seven finalists that the state’s Commission On Judicial Nominations sent to Governor Kathy Hochul the day before Thanksgiving.

Hochul’s pick will fill a pivotal role on the closely-divided court, which, in the absence of retired Chief Judge Janet DiFiore, is evenly split 3-3 along ideological lines. During Janet DiFiore’s tenure, the court’s pro-prosecution bent has been one of its defining features, an unsurprising profile for a court with three former prosecutors and no public defenders among its ranks. To correct this imbalance, community groupslegal advocacy organizations, and academics have been pushing Hochul to appoint a judge with public defense or civil rights experience—someone, as the Center for Community Alternatives put it, “who will protect the rights of all New Yorkers and who has a background fighting for the most vulnerable” —and the commission’s shortlist gives her that chance. 

Sam Mellins in NY Focus has this analysis:

The shortlist contained candidates from a range of professional and ideological backgrounds, including the court’s current acting chief judge, a Yale Law professor who worked on the Biden administration’s Covid response, a former prosecutor with the Suffolk County District Attorney, and an attorney with the criminal defense nonprofit Legal Aid Society.

Shortlisted candidate Corey Stoughton, who leads special litigation at the Legal Aid Society, has framed her work as part of a “struggle to end mass incarceration” and “confront the racism at the root” of the criminal justice system. She arguably represents the most progressive of available choices, with the other end of the ideological spectrum taken up by two sitting judges in the state’s mid-level appeals courts known for their hostility towards defendants.

Hector LaSalle, a former prosecutor at the Suffolk County District Attorney’s office, is known as one of the most conservative judges on his appeals court, which covers parts of New York City and its suburbs. Since joining the court in 2014, LaSalle has repeatedly dissented from decisions reversing or vacating convictions.

Jeffrey Oing, who serves on an appeals court covering Manhattan and the Bronx, also tends to side with the prosecution. In 2020, he wrote a dissent objecting to the court’s decision to reduce a sentence from 14 years to 10 for an intellectually disabled individual who had pled guilty to attempted murder.

Peter Martin has led the Center for Community Alternatives’ campaign for a court that is more diverse in professional background. He said in a statement that the Commission’s list “includes several with outstanding records,” pointing to Stoughton of the Legal Aid Society “whose entire career has been dedicated to civil rights,” Judge Edwina G. Richardson-Mendelson, and Yale Law School professor Abbe R. Gluck. But he added that “several candidates . . would be unacceptable,” naming Judge Anthony Cannataro, along with Justices LaSalle and Oing, as those with “records that demonstrate the wrong values and priorities for New York.” 

Including Cannataro, whom former Governor Cuomo appointed to the court last year, among the “unacceptables” makes sense for anyone who thinks that the court has failed to protect the rights of people charged with crimes and others, Mellins reports:

If Cannataro gets the job, he may well pick up where DiFiore left off: The two judges voted in lockstep on every case they heard together.