The State Judicial Commission Blew It

Jill Karofsky. Photo courtesy of Jill Karofsky’s campaign.

The Wisconsin Judicial Commission correctly found no probable cause to conclude that Wisconsin Supreme Court Justice Jill Karofsky violated the Code of Judicial Ethics during the Trump v. Biden oral argument on December 12, 2020. The Commission was thus required under Chapter 757 of the Wisconsin Statutes to dismiss the Maryland attorney’s disciplinary complaint against her, which it belatedly did.

The dismissal order should have been the end of it.

Instead, after sitting on the patently meritless complaint for 18 months, some Commission members presumed to secretly caution Justice Karofsky on her manners—that is, how she should behave at future oral arguments. An “expression of concern” was their disingenuous euphemism. In proceeding thus, these Commission members falsely asserted that Justice Karofsky had sarcastically questioned President Trump’s lawyer Jim Troupis at oral argument, and that she had called him “shameful” for his attempt to void all ballots cast in Milwaukee and Dane counties in order to install Trump as “king”.

Justice Karofsky did no such thing although, to her credit, she was admittedly assertive in her questioning. Supreme Court oral argument is neither tiddlywinks nor for the faint of heart.

Justice Karofsky was dead serious in probing Mr. Troupis’s occasionally unfocused, at times evasive arguments. She did not insult or mistreat Attorney Troupis, who is nobody’s snowflake anyway and has not himself complained to the Commission.

Rather, Justice Karofsky described Trump’s lawsuit to disenfranchise hundreds of thousands of voters in two Wisconsin counties, together with his unsubstantiated claims of massive voter fraud, as “shameful”.

In this, Justice Karofsky was correct. The lawsuit was shameful, and still is. She was fully within her rights to call it out. Indeed, Justice Karofsky was ahead of her time in emphasizing a real threat to our republic that existed in mid-December 2020 and that has only grown since.

The Commission members’ dubious “expression of concern” completely misses the point. In the face of Trump’s malignant attempt to corrupt our election through lies, intimidation and frivolous lawsuits, the “concern” is that judges may stray into sarcasm? Seriously? Trump and his supporters deserve neither equanimity nor deference in their attempt to enlist our courts on a mission to undermine the rule of law underpinning our democracy.

A Supreme Court justice is a guardian of the Court— or should be. The Court, in turn, is a guardian of our democracy. When lawsuits egregiously threaten our democracy—which Trump’s did—Justice Karofsky has a duty to the Court, to our democracy and to the people of Wisconsin to confront that threat as forcefully as necessary with all the tools available to her. These tools include her words, the law, the moral authority derived from her oath to uphold the Constitutions, and her status as fiduciary for the people of Wisconsin. The greater the threat, the stronger her response needs to be. And short of the January 6 insurrection, is there any greater threat to democracy than an attempt to weaponize the court system to destroy the very basis for its existence, the people’s franchise?

Former Congresswoman Liz Cheney once observed:

In many nations, democracy has failed because those with authority would not act to protect it, because they sat in silence.

“Shameful” is too tame a word for Trump’s December 2020 lawsuit. The same can be said for the Wisconsin Judicial Commission members’ absurd nit-picking over Justice Karofsky’s manners at an oral argument where she confronted Trump’s clear and present danger to our election. The Commission members’ petty and gratuitous “expression of concern” is entirely misdirected.

By Richard G. Niess, Dane County Circuit Court Judge (retired).

The Wisconsin Judicial Commission Blew It was originally published by the Wisconsin Examiner.