The GOP War Against Democracy-- The Wisconsin Front

In his mania to impeach Supreme Court Justice Janet Protasiewicz, state House Speaker Robin Vos appointed a secret 3-judge panel to advise him, at least two of whose members are right wing goons, picked because they are likely to tell Vis exactly what he wants to hear. Yesterday two other former Supreme Court justices (and law professors), one, Janine Geske, appointed by Republican Tommy Thompson and one, Louis Butler, appointed by Democrat Jim Doyle, penned an OpEd for the Wisconsin State Journal on the unconstitutional nature of what Vos is trying to do. Keep in mind when you read it that in 2017 Geske was one of 54 former Wisconsin judges who signed a letter advocating for rules requiring judges to recuse themselves in cases involving campaign donors.

The Wisconsin Constitution is clear: Impeaching a justice for following the rules that govern her conduct is an attack on the very independence of the court and violates the separation of powers.

As former state Supreme Court justices, we’ve had the privilege of serving the people of Wisconsin. On the bench, we were charged with upholding the law and the constitution fairly and impartially, and without the influence of our personal beliefs, political pressure or interference from other branches of government. While we no longer serve on the court, we still carry these principles with us and have a duty to speak out against attacks on the judicial branch’s independence or attempts to weaken its ability to serve the people of our state.

In recent weeks, Assembly Speaker Robin Vos (R-Rochester), and other members of the Legislature have tried to erode the court’s independence and make it beholden to the Legislature and its clear partisan agenda. Vos recently announced a secret, three-judge panel to consider the criteria for impeachment in relation to newly elected state Supreme Court Justice Janet Protasiewicz. The members of the panel are apparently retired state Supreme Court justices.

This is an unprecedented step of the speaker inserting himself into the judicial process. While we were not invited to join this panel, we think it’s important to share our perspective on the questions surrounding impeachment and outline the reasons why it would not only be inappropriate, but unconstitutional.

Fortunately, the Wisconsin Constitution is clear on this matter because it outlines precisely when impeachment is an appropriate action. The only constitutional grounds for impeachment are when an elected official is guilty of “corrupt conduct in office, or for crimes and misdemeanors.” Justice Protasiewicz has not been accused of anything that would even begin to rise to this level. The Legislature has moved to intervene in a pending legal matter. It has filed a motion arguing that legal contributions to her campaign and the sharing of her personal opinion on issues during her campaign, require her to recuse herself from hearing that very case and not do the job she was elected to do.

To begin with, no allegations have been made against the justice that she committed crimes or misdemeanors. So the Legislature has no basis to consider impeachment on those grounds.

As for “corrupt conduct in office,” at least two reasons show why the justice’s campaign speech cannot be the grounds for impeachment. First, the justice was not in office when any campaign speech was made, and her campaign speech is therefore not “conduct in office.” Second, in other similar contexts, the U.S. Supreme Court has already held that this type of campaign speech is protected speech under the First Amendment to the U.S. Constitution in judicial elections.

That leaves a final assertion for why Justice Protasiewicz could somehow be impeached: If she refuses to recuse herself in the very matter that the Legislature seeks to become a party. On this issue, the rules are clear. Wisconsin’s Code of Judicial Conduct says that campaign donations alone should not be considered grounds for recusal in a case, and gives judges the sole discretion to decide whether a conflict exists that would prevent them from giving a fair ruling.

Wisconsin Supreme Court rules and prior decisions of that court leave the decision on whether to recuse up to the individual justice, and conclude that other members of the court have no basis in reviewing that decision. At the time of this writing, Justice Protasiewicz has made no decision on whether to recuse in this matter, but that decision is hers to make according to these prior court decisions and rules. As such, it cannot be “corrupt conduct” for her to follow the very rules and precedent she is required to follow.

The issue with various legislators’ implicit impeachment threats is deeper, though, than a failure to understand the impeachment standard. Threatening to even consider the possibility of removal of a justice is really an attempt to dictate the outcome of cases, and it undermines the right of the citizens of this state to keep in place the very judges and justices they elect to make decisions on their behalf. It is an attack on the court’s independence and the separation of powers that is guaranteed in our Wisconsin Constitution.

Wisconsinites deserve a justice system where justices are allowed to do their jobs, and to decide cases fairly and impartially-- without threats from the Legislature in a case where it seeks to be a party, thereby chilling a justice’s ability to make the very decision that justice was elected to make. This is what the constitution demands and what’s necessary for our democratic system of justice to work.

On Wednesday, Dave Cieslewicz reported that “Members of his caucus started to publicly say they had reservations about impeachment. In fact, in a survey conducted by the Milwaukee Journal Sentinel none of the 64 Assembly Republicans would commit to voting to impeach. Because of his huge majority Vos has the ability to let over a dozen of those members vote against it and still have enough votes, but some of those members probably don’t want to take a vote on this at all. If they vote against it they could be primaried by the hard right. If they vote for it they run the risk of losing a general election, probably over the potent abortion issue. Republicans have been taking a beating at the polls over their hard-line anti-abortion stance and impeachment can be easily cast as an anti-choice vote, even though Vos has put it in the context of redistricting… Vos looks like a guy who’s flailing around, looking for some kind of foothold to save his rigged (well, they are) majorities in the Legislature. There seem to be new developments every other day, but as of this writing it sure looks like the liberals and the Democrats have the upper hand.”

This morning, I asked my go-to person on what's happening in the Wiaconsin state legislature... and to democracy in the state, Sen. Chris Larson. “The endless effort by right-wing Republicans to impede our republic from working never seems to end,” he told me. “Luckily, in just the latest example, the republic is ahead of them. This time, the effort by Republican Speaker Robin Vos, who is only in power because of his brand of extreme gerrymandering, was pre-thwarted in his effort to create even the veneer of a justification to overthrow our last election. Two former justices have penned what everyone already knew: there is no basis in law for the garbage Vos and his cult of anti-democracy crusaders are trying to pull. Vos was trying to coral his band of extremists and coax them into cooking up a reason why Justice Janet Protasiewicz should be removed before she's served 1% of her term or even heard a single case on the Supreme Court. Vos tried a similar scheme two years ago when he gave a blank checkbook to disgraced Justice Michael Gableman to chase every election conspiracy he could think of.”

Larson added, “Democracy is growing in Wisconsin. We won't go back.” Please consider lending Larson’s reelection campaign a hand here.