Five things to know as Wisconsin Republicans weigh impeaching Supreme Court justice

Wisconsin Republicans are considering impeaching a newly elected liberal Supreme Court justice in the state over comments she made as a candidate about redistricting and for receiving donations from the state Democratic Party.

Assembly Speaker Robin Vos (R) announced this week the formation of an impeachment criteria panel as Republicans weigh ousting Justice Janet Protasiewicz, whose win in April established a 4-3 liberal majority on the court.

Protasiewicz has yet to hear a case, but the high court was asked in August to hear several cases on Wisconsin’s legislative maps.

Republicans point to previous comments Protasiewicz made about the state’s maps, in which she called calling them “rigged.”

Protasiewicz declined to say during the election how she would rule on the issue, and she has not determined whether she will recuse herself from the case.

Here are five things to know about Wisconsin Republicans’ potential impeachment effort:

Redistricting at center of impeachment effort

Two recent lawsuits have asked the Wisconsin Supreme Court to rule the entire legislative map for 2024 should be redrawn.

The challenges would not impact Wisconsin’s congressional map.

The first challenge to the state’s maps came shortly after Protasiewicz formally joined the court. Her election marked the first time in 15 years that the state’s high court would have a liberal majority.

The lawsuits would threaten Republicans’ hold on both houses of the state Legislature, where the state Senate holds a GOP supermajority and the Assembly is just a few seats shy of one. The cases are notable given Wisconsin is one of a handful of remaining swing states in the country.

Meanwhile, the state Assembly passed a redistricting bill on Thursday that would allow nonpartisan staff members to redraw the state’s map, with approval subject to the Legislature. A majority of the lawmakers would be needed to change it on a third pass. It’s not clear whether the state Senate will pass it, but Gov. Tony Evers (D) has said he’ll veto it.

Republicans are pointing to Protasiewicz’s comments during election as evidence

Republicans argue that Protasiewicz has already made her position clear on how she would rule on the state’s maps, pointing to comments she made during the election to fill a seat on the Wisconsin Supreme Court earlier this year.

“Let’s be clear here — the maps are rigged, bottom line. Absolutely, positively rigged. They do not reflect the people in this state,” Protasiewicz said during a candidate forum. 

“They do not reflect accurately representation neither the state Assembly or the state Senate. They are rigged, period. Coming right out and saying that. I don’t think you could sell to any reasonable person that the maps are fair,” she continued, later noting she couldn’t say how she would decide on a particular case.

Republicans also take issue with campaign contributions she’s received from the state Democratic Party. She received close to $10 million, according to The Associated Press, though the party is not one of the litigants in either lawsuit. 

Conservative candidate Daniel Kelly, who challenged Protasiewicz for the vacant state Supreme Court seat this spring, also received money from the state GOP. 

Kelly also declined to say during the election how he would weigh a case on the state’s maps, though he did implicitly rebuke Protasiewicz during the January candidate forum, saying, “I think when someone tells you what their values are in answer to a legal question, they’re telling you how they’re going to decide the case.”

Still, Republicans believe the liberal justice should recuse herself from considering either of the cases, though experts say there are protections in place for judicial candidates to be able to speak on legal issues.

“The U.S. Supreme Court has said that judges have a First Amendment right on the campaign trail [to speak] about disputed legal and policy questions,” said Robert Yablon, an associate professor of law and faculty co-director of the State Democracy Research Initiative at University of Wisconsin Law School.

A new panel will review impeachment criteria

Vos this week established a panel consisting of former state Supreme Court justices to look into criteria over a potential impeachment of the liberal justice.

Former conservative state Supreme Court Justice David Prosser confirmed to The Associated Press that Vos had reached out to him. It’s not yet known who else is expected to participate. 

“I am not saying we are going to impeach the justice. All I’m saying is one of our constitutional powers is the possibility that that could occur if it rises to the level, and I’m asking people who are experts on this topic to come back with an analysis to say whether or not that’s possible and how it should occur,” Vos said in an interview on News/Talk 1130 WISN on Wednesday.

Yablon suggested the panel is delaying the timing of an actual impeachment, though it’s unclear what kind of role the panel would play in a potential impeachment effort.

“I think actually the creation of that panel would seem to slow the timeline for a possible impeachment down, at least a little bit,” Yablon said, adding later, “… [H]e is, it sounds like, going to have these retired judges look into it for maybe several weeks.”

Protasiewicz supporters are challenging the effort in court

An attorney, who was a former state Supreme Court candidate, is representing two people who voted for Protasiewicz in a lawsuit as an effort to stop Republicans from ousting the liberal justice in the state legislature.

“Petitioners respectfully request that this Court issue an ex parte emergency order temporarily restraining the legislature from conducting impeachment proceedings against any member of this Court because doing so would violate the express terms of constitutional authority granted to the Assembly for impeachments of civil officers as well as violate the constitutional rights of the Petitioners to serve as electors under the Wisconsin Constitution,” the lawsuit reads.

“An emergency, temporary restraining order is warranted in these circumstances as the mere act of an unconstitutional impeachment, even without a conviction, would nullify the vote of over one million Wisconsin voters, including and specifically those of the Petitioners,” it adds. 

The state Democratic Party has also launched a $4 million effort to combat a potential impeachment effort by Republicans. 

Much is unknown about what an impeachment trial could look like

Experts say that there’s a lot of uncertainty over what an impeachment trial could look like if the Wisconsin Supreme Court decides to directly take up the redistricting cases and Protasiewicz decides not to recuse herself.

The unknowns include when the process would start and if Republicans have enough support in both houses to impeach the liberal justice. One possibility could be that the Assembly votes to impeach her but the state Senate does not hold an impeachment vote, which would keep her on the court but essentially render her unable to make decisions on the court, as The Associated Press noted. 

“So much of this is uncharted territory — that impeachments are rare enough that there’s just not enough accumulated historical practice to say, ‘This is how it should go or will go,'” explained Chad Oldfather, professor of law at Marquette University Law School.

“There’s just not enough detail in the state constitution to lay out a precise plan for how it will unfold,” he added.