Republicans aim to impeach new liberal activist justice on Wisconsin Supreme Court, setting up potential constitutional crisis

 September 9, 2023

Following a special election in April, the partisan balance of the Wisconsin Supreme Court was flipped from right to left for the first time in 15 years after liberal Justice Janet Protasiewicz prevailed as the victor in that contest.

Justice Protasiewicz sat for her first case on Thursday, which was rather uneventful and belied a brewing potential constitutional crisis in relation to her and the state's high court, according to Urban Milwaukee.

At issue here are threats from Republican state lawmakers to impeach and remove the new justice from the bench if she doesn't recuse herself from certain cases -- a threat that has the potential to upend the state's Supreme Court for years to come.

Republicans have targeted new justice for impeachment

According to the Wisconsin Examiner, conservatives and Republican legislators have long accused Justice Protasiewicz, formerly a Milwaukee judge, of displaying overt political bias and partisanship with regard to various issues that will eventually be settled by the Wisconsin Supreme Court.

Chief among those are lawsuits challenging the redistricting maps drawn up by the Republican-controlled legislature that Democrats have complained are too favorable to the GOP and that Protasiewicz herself previously maligned as being "rigged."

In addition, critics of Protasiewicz have pointed to millions of dollars in campaign contributions she received from the state Democratic Party that they assert are evidence of her partisanship and constitute a conflict of interest that will require her recusal from certain clearly political cases.

However, the Examiner noted in Protasiewicz's defense that the high court's recusal rules, established under the prior conservative majority, don't require recusal in cases involving campaign donors. Furthermore, it was pointed out that the state Democratic Party isn't a party to the lawsuits challenging the district maps, as well as that ethics complaints filed against Protasiewicz have been dismissed.

Potential constitutional crisis in the making

Nonetheless, the Examiner reported that Wisconsin Republicans, led by Assembly Speaker Robin Vos (R), have continued to press forward with threats of impeachment if Justice Protasiewicz refuses to recuse herself from certain cases -- a move that could spark a constitutional crisis involving the very institution that was established to settle constitutional crises.

If a majority of the Assembly voted for impeachment, the new justice would immediately be suspended from duty per the state constitution pending the conclusion of a Senate trial that would require a two-thirds majority to convict and remove her from the bench, effectively placing her and the court in "an indefinite limbo."

Theoretically, Protasiewicz could resign and allow Democratic Gov. Tony Evers to appoint her replacement, but the timing of such a move would be key. If that happened prior to Dec. 1, the appointed replacement would be almost immediately face an election in April 2024, when Republicans hold their primary election.

Should she wait until after Dec. 1 to resign, however, the replacement appointed by Evers would be able to serve until the next available election cycle that doesn't already have a Supreme Court seat up for grabs, which wouldn't occur until 2031. In theory, Protasiewicz could resign after Dec. 1 and be immediately reappointed by Evers, which would almost certainly trigger a continuing series of impeachment efforts by Republicans, so long as they retained a majority in the legislature, that would effectively stymie any action from the court.

This just proves the original point

Meanwhile, the Wisconsin Examiner also reported that the state Democratic Party has launched a $4 million ad campaign attacking Republicans and in support of Justice Protasiewicz.

Yet, in the view of Speaker Vos, that move by the Democrats only serves to confirm the initial complaints and critiques that the new justice is, in fact, a partisan activist who doesn't belong or deserve to be seated on the bench of the state's highest court.

"All this does is prove that Justice Protasiewicz and the Democrat Party are one and the same. The timing of yesterday’s order from Justice Protasiewicz and the Democrat Party’s immediate press conference announcing $4 million dollars in attack ads supporting Justice Protasiewicz’s involvement is further indication of coordination between the two," Vos said in a statement. "We fully expect Justice Protasiewicz will recuse herself from handling a case where she has pre-decided the outcome and the Democrat party is fully involved."

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