MADISON, Wis. (CN) — A liberal Wisconsin Supreme Court justice has rejected calls from conservatives to recuse herself from redistricting litigation on the high court’s docket, setting up a potential showdown with Republican lawmakers who have floated impeaching her if she does not step aside.
Justice Janet Protasiewicz won a landslide victory in April for a seat on the Badger State’s highest court, flipping the ideological majority of the court from conservative to liberal for the first time in more than a decade.
On the campaign trail, Protasiewicz drew rebuke from her opponent, former Wisconsin Supreme Court Justice Dan Kelly, and state Republican lawmakers for calling Wisconsin’s current electoral maps — widely considered to be among the most gerrymandered in the nation, favoring Republicans —“rigged.” She expressed this as a “value” of hers and repeatedly said she would not prejudge any case concerning the maps.
The maps Republicans drew in 2011 were tossed by a federal judge as unconstitutionally designed to dilute Democratic votes, but in the end they were reinstated by the U.S. Supreme Court. After a hotly contested legal battle to draw new decennial maps, the Wisconsin Supreme Court in 2022 ultimately adopted maps drawn by Republicans that largely reflected the advantages baked into the 2011 maps.
One day after Protasiewicz was sworn in on Aug. 1, a Madison-based progressive law firm brought the first of two lawsuits filed within a week asking the high court to throw out the current maps. Republicans accused the court’s new liberal majority of plotting a judicial fiat and said impeachment was on the table if Protasiewicz refused to recuse herself from cases they claim she has all but decided already, leveling the threat before she had heard a single case.
Conservatives have argued that she must recuse herself based not only on her campaign trail comments but also because she accepted nearly $10 million in campaign donations from the state Democratic Party, though campaign donations to sitting and campaigning nonpartisan justices from political parties have been common for both sides in Wisconsin in the past.
Protasiewicz responded to these calls late Friday in two identical memorandum decisions declining Republicans’ motions for her to recuse, while acknowledging the seriousness of being asked to do so by a co-equal branch of government.
Wisconsin Assembly Speaker Robin Vos, a Rochester Republican who has been vocal about the possibility of impeachment proceedings against the justice, did not immediately respond to a phone message and an email seeking comment on Protasiewicz’s decisions.
“In deciding this motion, I have searched the law books — and my conscience — to ensure a correct and impartial ruling. I have reviewed the parties’ arguments. I have studied the facts. And I have examined every relevant precedent. Ultimately, I have found I must deny the recusal motion,” Protasiewicz said in her rulings.
Regarding the campaign donations, the liberal justice said in part that binding precedent does not require her recusal because the Democratic Party of Wisconsin is not a litigant in the redistricting cases. She said it would be “unworkable” and “unprecedented” for due process to demand all elected judges to recuse whenever it is possible their involvement might benefit a nonlitigant who supported their campaign.
Turning to her campaign comments, Protasiewicz reiterated that, while she expressed a value judgment disapproving of the current maps, she emphasized during her campaign that she would never prejudge any case and always follow the law when making her decisions.
Protasiewicz additionally said Republicans’ position runs contrary to federal precedent, citing a 2002 U.S. Supreme Court decision penned by then-Justice Antonin Scalia saying the government cannot ban judicial candidates from stating their opinions on legal or political issues.
The liberal justice also said Repbulicans’ argument is impractical given that expressing opinions cannot be a cause for recusal if previous rulings on an issue are not. She noted that one of her fellow sitting justices issued a dissenting opinion on a procedural matter in one of the redistricting cases in August in which the judge called entertainment of the case a “mockery of our justice system.”
Protasiewicz did not name the justice, but the opinion was written by conservative Justice Rebecca Grassl Bradley, who has sharply criticized actions taken by the liberal majority since Protasiewicz joined the bench.
Finding also that Wisconsin law does not require her recusal, Protasiewicz summed up that “consistent with the oath I swore, my highest obligation is to ‘faithfully and impartially discharge the duties of my office.’ Those duties include participating in cases when the law does not require me to recuse. Here, under that legal standard, I must respectfully deny this motion.”
Wisconsin’s judicial recusal rules derived from statutes and the state Code of Judicial Conduct essentially presume judicial impartiality with a few exceptions and leave it to an individual jurist to decide whether to recuse.
Under the Wisconsin Constitution’s impeachment guidelines, a judge or other elected official may be impeached only for “corrupt conduct in office” or “the commission of a crime or misdemeanor.” Once impeached by the Assembly, a jurist may not exercise any official duties. If two-thirds of the state Senate then vote to convict the judge following a trial, a replacement is appointed by the governor.
Only one official has been impeached in Wisconsin history: Judge Levi Hubbell, in 1853. He was not convicted.
In corresponding 4-3 decisions on Friday the full state Supreme Court, split along ideological lines, tossed the second of two redistricting cases filed with the court but let the first one proceed. In that case the court tentatively scheduled oral arguments for the morning of Nov. 21.
In the decision allowing a redistricting case to proceed, the high court’s three conservative justices offered separate dissenting opinions, all considering the case an illegitimate attempt to undo the court’s previous decisions on the state’s voting maps.
Grassl Bradley’s scathing dissent was framed around references to Lewis Carroll’s 1865 novel “Alice’s Adventures in Wonderland.” She said, in part, that “the probability of actual bias on Protasiewicz’s part likely approaches 100%” and accused the liberal majority of “perverse politicization” of the high court that degrades its integrity.
“Through the looking glass we go,” Grassl Bradley concluded.
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