Madison, Wisconsin. “This is a judicial election unlike any other in American history.

Thirty million dollars was poured into the campaign for a swinging seat on the Wisconsin Supreme Court, and television ads flooded the airwaves. Candidates leave no illusions that they will be neutral in court. And the race will decide not only the future of abortion rights in Wisconsin, but the political direction of the state’s battlefield.

But the rest of the competition is reminiscent of little-known local elections: there are no bus tours and mass rallies. Foreign political stars are nowhere to be found. Retail politicking is limited to small gatherings in bars that are not announced to the public in advance.

The result is a campaign – officially non-partisan but actually filled with partisanship – that brings together old and new ways of judicial politics in America and offers a preview of what could happen. This is the latest evidence, after recent contentious battles for confirmation and rulings in the US Supreme Court, that judges who are increasingly seen as political are starting to openly act as political.

Officials from both parties believe that the Wisconsin race could lead to a fundamental change in how races are run in the state Supreme Court. 21 other states where judges of the highest court are elected, pouring in unprecedented amounts of money, politicizing and interest voters.

“If you select a candidate who is focused on politics, the agenda and values, it will reward that behavior and it will be repeated,” said Shelley Grogan, a Wisconsin appeals court judge who supports Daniel Kelly, the conservative candidate. for the Supreme Court and preparing his own future work in the Supreme Court.

Judge Grogan alluded to the fact that Judge Kelly’s liberal rival, Janet Protasevich, was much more outspoken about her political views, seeking to turn the April 4 general election into a referendum on one issue about abortion, which is currently banned in Wisconsin. And she seems to have the upper hand, with a lead in private polling and a big lead in fundraising and advertising.

Judge Kelly, who served four years on the court before being ousted in the 2020 election, has extensive conservative experience and support from Wisconsin’s biggest anti-abortion groups. But he has focused his campaign on the argument that he is not a politician and will decide cases solely on the basis of the Wisconsin Constitution, a message that worries even some conservatives is less convincing than Democrats’ calls to protect abortion rights.

Judge Protasevich, a Milwaukee County judge, stressed that she supports liberal issues and opposes conservative policies. She, she says, shares her values ​​without explicitly stating how she will decide in specific cases.

But few are deceived. During their only discussion last week, Judge Protasevich barely bothered to hide how she would rule on the state’s 1849 abortion ban, a challenge expected to go to the Wisconsin Supreme Court this year.

Sarah Godlewski, a Democrat appointed this month as Wisconsin Secretary of State, said at a Green Bay stop last week that “when we talk about abortion, when we talk about reproductive freedom, we will be able to win on these messages.”

Whoever wins will receive a 10-year term and become a casting vote in a four-to-three majority in a court likely to decide voting issues before and during the 2024 presidential election. If Judge Protasevich wins, Democrats are sure to challenge the state’s rigged legislative maps—and she called them “rigged” during the campaign.

Protasevich’s strategy is to use advertising to energize Democrats and stifle Republican support.

“For the typical voter, 90 percent of what they learn about this election is likely to come from campaign ads,” said Ben Wikler, chairman of the state’s Democratic Party.

Virtually all of the state’s Democrats support Judge Protasevich’s campaign, with a few notable exceptions.

In Milwaukee, black community organizing group BLOC, formed in 2017, refused to support Judge Protasevich because she sentenced her son one of the leaders of the group under 20 years old in jail for hit-and-run accident in 2019 that killed 6 and 4 year old sisters.

“Obviously, this is not ideal, as it is for all balloons,” said Angela Lang, chief executive of BLOC. “But this is something I have to support. I wouldn’t force people whose family members were locked up by her to be in a position to support her.”

Wisconsin Republicans face more familiar divisions.

Some conservative voters have been put off by the deluge of negative publicity about Judge Kelly, said Matt Batzel, executive director of Wisconsin-based American Majority Action, a conservative grassroots education group.

Mr. Batzel’s agitators, who typically focus on conservative families, found that in a suburban Milwaukee Senate district that also hosts an April 4 special election, two-thirds of people who said abortion was their top issue in the race said, that they are in favor of the right to abortion.

“Let’s interpret the Constitution the way it’s written and follow the rule of law” has historically not motivated so many people,” Mr. Batzel said.

During the debate, Judge Kelly insisted that he had not yet decided how he would rule on the challenge to the 1849 Act.

“Dan is such a purist that he doesn’t want to come across as a politician,” said David Prosser, a conservative former court judge.

Republican legislative leaders in Wisconsin, knowing that abortion rights are a powerful motivator for Democrats, attempted to make some exceptions to the 1849 law, but the efforts made little headway.

“The Republican Party should have passed an abortion bill long ago and put it on the governor’s desk,” said Van Mobley, president of the Tiensville Republican Village, who was the first Wisconsin elected official to support Donald Trump’s campaign in 2016. “Still no. So I don’t think it’s very helpful in creating a climate for us.”

Judge Kelly’s biggest hurdle may be financial inequality, which is the result of campaign finance rules written by Wisconsin Republicans in 2015.

Prior to this, the state provided modest public funding for statewide judicial campaigns and limited the amount of money candidates for any office could receive from state parties.

But that same year, Governor Scott Walker and the Republican-led legislature passed legislation allowing individual donors to give unlimited amounts to participating states and allowing participating states to transfer unlimited amounts directly to candidates.

That, combined with Mr. Wikler’s Democratic fundraising acumen when he became party chairman in 2019, has put Republicans at a financial disadvantage in races where their billionaire donors aren’t backing candidates.

Republicans are now lamenting the spending imbalance that allowed Judge Protasevich to air more than $10 million in television ads while Judge Kelly spent less than $500,000 on them.

Judge Grogan lamented that Republicans do not have access to the national fundraising network that supported Protasevich’s campaign. But she declined to say whether it was a mistake for the Republicans and Mr. Walker to lift the cap on contributions to member states, and did not offer an opinion on whether donors should be allowed to make unlimited contributions.

“What we shouldn’t let money do in Wisconsin is buy a seat in any court,” Judge Grogan said. “Outside money should not buy a seat in a Wisconsin court. It’s up to the voters in Wisconsin to decide.”

WASHINGTON. The Biden administration is calling for a joint tribunal in which Ukraine and international allies will try Russian leaders for crimes of aggression, but some human rights lawyers fear there is a fatal flaw in the plan:

This could protect President Vladimir Putin from prosecution.

Beth Van Schaak, State Department Special Assignment for Global Criminal Justice, said on Monday that the administration supported the formation of an “internationalized national court” in which the United States and other allies would assist Ukrainian prosecutors in bringing cases against Russian leaders for the crime of aggression or illegal incursion into another country.

“We are determined to work with Ukraine and peace-loving countries around the world to stand up, staff and equip such a tribunal in such a way as to achieve comprehensive accountability for international crimes committed in Ukraine,” she said during war crimes conference at the Catholic University in Washington.

While her remarks represent one of the strongest statements to date of US support for the prosecution of the crime of aggression, they also highlight the difficulty of seeking to hold world leaders accountable for their actions while they remain in power. Also setting clear limits on how far the administration is willing to go, Ms. Van Schaak acknowledged his reluctance to set a precedent that could pave the way for a similar trial to prosecute US leaders.

Critics of the Russian invasion of Ukraine have debated competing proposals to hold Russian leaders accountable for the war, including the creation of a hybrid court based on the Ukrainian system with international elements, or the creation of a purely international chamber with jurisdiction over the crime of aggression.

While the details are yet to be worked out and changes to Ukrainian law are likely to be needed, lawyers say, the hybrid court could include both Ukrainian and international judges and have jurisdiction over the crime of aggression under both Ukrainian and international law. It could also gather outside the war zone, including in The Hague.

Ukraine, like other countries, allows incumbent heads of state to claim immunity from prosecution. By creating a proposed hybrid court, Ukraine’s legislature could make an exception, but if Mr. Putin is ever arrested and brought to trial, his lawyers could argue that the exception was illegal.

David J. Scheffer, who served as the US Special Envoy for War Crimes from 1997 to 2001, said the State Department’s proposal to create a joint tribunal based on Ukrainian law did not pan out.

“This is disappointing,” added Mr. Scheffer, who called for the creation of a special international tribunal, rather than a national or hybrid court, to try Russian leaders.

Several former diplomats and academics wanted the United Nations General Assembly to establish an exclusively international judicial body, such as the International Criminal Court in The Hague, which investigates war crimes and has ruled that it does not need to grant immunity to incumbent heads of state. They argue that such a new court could invoke this precedent, making it harder for Mr. Putin to invoke immunity and get the case dismissed.

(Aggression is distinct from war crimes, which include atrocities committed during war, regardless of the legality of the conflict.)

“Aggression is a crime committed by the leadership; if leaders have immunity, what are we even doing?” said Jennifer Trahan, professor of international relations at New York University, who advocates the creation of a tribunal independent of the Ukrainian judiciary. “We are living through the Nuremberg moment. Do we really want to deter aggression and the use of force? If we do that, we need to have a real deterrent response.”

But Harold Khunju Koh, a Yale Law School professor who served as a leading State Department lawyer in the Obama administration, argued that a hybrid tribunal modeled on a similar court that tried Khmer Rouge leaders in Cambodia could be created. and run much faster.

Mr. Koch noted that even in a purely international model, the problem of overcoming immunity for incumbent heads of state is far from being solved.

“The best shouldn’t be the enemy of the good,” Mr. Koch said. “The advantage of a hybrid court is that such a court really worked. Ukrainians actually have a prosecutor’s office that works and considers cases. Do you want to get on a train that’s going somewhere and see if it can get you where you want to go or wait for a brand new train to be built? Why not take the train?”

State Department spokesman Vedant Patel said on Tuesday that the new approach should not be seen as an “alternative or replacement” for the International Criminal Court: “This is another mechanism through which we support all international efforts to investigate atrocities,” he said.

This month, the International Criminal Court issued an arrest warrant for Mr. Putin and one of his senior officials for illegally kidnapping Ukrainian children and transporting them to their country.

But this tribunal does not have jurisdiction to prosecute for the separate crime of aggression against nationals of countries that are not parties to its treaty and have not signed it. an amendment that added aggression to his competence. Russia does not, and neither does the United States.

Some in the United States — especially in the Pentagon — also believe that the court should not exercise jurisdiction over other crimes within its jurisdiction, such as war crimes, against citizens of countries that are not party to the treaty that created it.

But late last year, Congress amended the law to allow support for war-related litigation.

However, the Biden administration is divided on how to deal with the court. While agencies such as the Justice Department and the State Department support the sharing of information about Russian war crimes, the Pentagon has objected, fearing setting a precedent that could make it easier to prosecute Americans in the future.

In her speech, Ms. Van Schaak appeared to refer indirectly to the controversy, noting that “the introduction of new legislative amendments to assist the ICC prosecutor is under consideration.”

Ms. Van Schaak, who helped investigate war crimes in Rwanda and the former Yugoslavia, said US officials and European partners working with the newly established International Center for the Investigation of Crimes of Aggression in The Hague are “creating criminal files against those leaders responsible for planning, preparing, initiating or waging this aggressive war for future tests.”

The Ministry of Justice is increasingly focusing on a similar support role, providing Ukraine’s prosecutors with logistical assistance, training and direct assistance in major cases.

She added that in addition to helping prosecutors in Ukraine, any evidence gathered could be used to charge war crimes and genocide and could even lead to further sanctions against Moscow.

Mr. Scheffer, who helped create an international judiciary to try defendants from Rwanda, Sierra Leone and the former Yugoslavia, said moving prosecution to a national court — as opposed to creating a fully international court — could undermine detention efforts. Mr Putin. responsible.

“I am skeptical that an internationalized Ukrainian court will receive much financial support by the time they start filing charges,” Mr. Scheffer said.

Michael Crowley made a report.