Wisconsin Judge Expected To Decide on Recusal in a Move That Could Spur Impeachment

Judge Protasiewicz is expected to make a decision on whether she will recuse herself from ruling on a redistricting case soon. Wisconsin Republicans have threatened impeachment if she refuses to recuse.

AP/Morry Gash, file
Judge Janet Protasiewicz attends her first hearing as a Wisconsin supreme court justice, September 7, 2023, at Madison. AP/Morry Gash, file

In Wisconsin, the battle over district maps is heating up, with state Republicans putting both an unprecedented impeachment of a supreme court judge and an overhaul of the state’s redistricting process on the table.

In April, Judge Janet Protasiewicz defeated Judge Daniel Kelly by 11 points in a high-profile state supreme court election that attracted national attention due to its implications for abortion rights, the 2024 election, and the state’s district maps.

State Republicans responded by threatening to impeach Judge Protasiewicz and remove her from office if she refuses to recuse herself from a case concerning the state’s district maps. She has not yet made a decision, but a response concerning her decision is expected any day.

The state assembly speaker, Robin Vos, who raised the prospect of impeachment, says that Judge Protasiewicz, in stating on the campaign trail that there needs to be “a fresh look at the gerrymandering question” and that the state’s maps were “unfair” and “rigged,” has blocked the possibility of hearing cases concerning the issue fairly.

Mr. Vos has also hung the potential impeachment Judge Protasiewicz having received $10 million from the state Democratic Party in her campaign. 

Judge Protasiewicz promised to recuse herself from cases involving the state Democratic Party. The redistricting case pending before the court wasn’t brought by the Democratic Party, though, it was brought by a state anti-gerrymandering organization, Law Forward, and the Election Law Clinic at Harvard Law School.

Mr. Vos argues that, because Democrats would likely benefit from redrawn maps, Judge Protasiewicz should recuse herself. Wisconsin is one of the most gerrymandered states in America, according to the Princeton Gerrymandering Project, with the maps favoring Republicans.

The proposed impeachment would be an unprecedented use of the power. The Wisconsin constitution describes legitimate causes for impeachment as “corrupt conduct in office” or committing a “crime or misdemeanor.” No one is currently accusing Judge Protaciewicz of either corruption or criminal behavior.

Impeaching Judge Protaciewicz would also be singling her out for behavior engaged in by most judges. Only one justice on the state’s supreme court, Judge Ann Walsh Bradley, did not take money from a political party during her campaign for the court. Candidates for the state supreme court also frequently speak about issues on which they could one day rule.

Democrats have already rolled out a messaging campaign framing the possible impeachment as a power grab and tracking the position of every state senator and assembly member.

“When Wisconsinites find out that a group of politicians led by Robin Vos, the Republican speaker of our state assembly, are threatening to overturn the last election just to lock in their own power and prevent the public from choosing who leads the state, they are outraged,” the Wisconsin Democratic Party chairman, Ben Wikler, told MSNBC.

Other individuals have filed lawsuits of their own, such as attorney Andrew Hysell and a former candidate for state Supreme Court, Tim Burns, who brought a case asking the supreme court to block impeachment, a case from which Judge Protaseiwicz has already recused herself.

In the suit, Messrs. Hysell and Burns argue that allowing this impeachment to go forward would “suggest that other civil officers of the judiciary could be impeached for political reasons as well,” and that could hinder the court’s “constitutionally prescribed role as a separate independent branch of government to adjudicate cases and controversies.”

In response to mounting pressure, Mr. Vos softened his position in conversation with a conservative radio host, Dan O’Donnell, saying, “I’m not predicting we’re going to impeach because I don’t know that we will,” while maintaining that there are only “a few remedies if somebody makes a big mistake like this.”

Mr. Vos then appeared to offer an olive branch to state Democrats, proposing a new bill that would create a bipartisan redistricting commission to handle the drawing of maps based on Iowa’s system.

In response to Mr. Vos’s proposal, though, Iowa’s state auditor, Rob Sand, a Democrat, and the former Republican Party of Iowa chairman, Mike Mahaffy, said in a statement that “it lacks the elements that have been the foundation for our system’s success.”

“The clearest and most consequential difference is that Wisconsin’s proposal rejects our system of judicial review,” Messrs. Sand and Mahaffy said.

In the Iowa system, the legislature has a limited number of opportunities to accept or reject maps drawn by legislatively appointed staff. If lawmakers fail to reach a deal, the maps are drawn by the supreme court. Mr. Vos’s proposal would bypass the court, giving the legislature final the say over maps.

The state assembly still passed the changes last week. While the Republican-led state senate may also pass the bill easily, Governor Evers has promised to veto the bill. State Republicans would need every vote they have in the senate to override the veto, and it’s not immediately clear whether such an effort would succeed.

As this legislation moves forward, the time for the state legislature to get around the supreme court is running out, with a response from Judge Protasiewicz on her decision on recusal expected at any point.

Mr. Vos’s office did not immediately respond to a request for comment.

The New York Sun

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