Yes, Protasiewicz Could Be Impeached

Milwaukee County Judge Janet Protasiewicz appears in a headshot. Photo courtesy Janet Protasiewicz campaign.

The issue has gotten national attention with a story by NBC News declaring “Wisconsin GOP could try to oust new liberal Supreme Court justice,” and Salon warning that “Wisconsin GOP supermajority already looking to impeach newly elected liberal Supreme Court judge.”

Meanwhile Wisconsin Watch (WW) did a story declaring that “Republicans Can’t Simply Remove a WI Supreme Court Justice.” The article quoted a memorandum by the nonpartisan Wisconsin Legislative Council which states that “The Assembly may impeach an elected official by a majority vote based on specific reasons: corrupt conduct in office or for the commission of a crime or misdemeanor.” And then the impeached official would face a trial by the Senate where a two-thirds vote, or supermajority, which Republicans now have, is needed to find the official guilty and remove that person from office.

But the Legislative Council’s emphasis on “specific reasons” got a different interpretation from from a more in-depth analysis by the nonpartisan Legislative Reference Bureau (LRB) in February. It noted that the state Constitution states that “the assembly shall have the power of impeaching all civil officers of this state for corrupt conduct in office, or for crimes and misdemeanors,” but added that “The constitutional provision does not define… ‘corrupt conduct in office’ and likewise does not specify which ‘crimes and misdemeanors’ constitute grounds for impeachment.

Which “civil officers” could be removed from office under that undefined phrase “corrupt conduct in office”? The LRB memo notes that the impeachment power broadly includes all state officials, including “the governor, lieutenant governor, and judges… the attorney general, state treasurer, secretary of state, and superintendent of public instruction,” and most likely “all executive branch appointed officers, especially those requiring senate confirmation, would be considered ‘civil officers of the state.’” And that would also include Wisconsin Supreme Court justices, as LRB executive director Rick Champagne was quoted in a Wisconsin Public Radio article.

Recall that Republicans argued that liberal Circuit Court Judge Janet Protasiewicz, who just won election to the Wisconsin Supreme Court, violated the state’s ethical code for judges during the campaign by showing bias in declaring her support for fair legislative maps and abortion rights for women. “When you make such a blanket statement like that I just don’t see any way that she can participate in these cases, even if she’s elected,” said the Wisconsin Republican Party’s executive director, Mark Jefferson, in support of a legal complaint seeking to have the Wisconsin Judicial Commission investigate Protasiewicz.

So what if Protasiewicz votes to strike down the 1849 law banning abortion in Wisconsin or to overturn the gerrymandered legislative maps in Wisconsin? Is that a violation of judicial ethics and thus “corrupt conduct”?

Assembly Speaker Robin Vos has said the Republicans “have the ability to impeach officials if they are not following the Constitution and the law.” Does a decision overturning the 1849 abortion ban qualify?

Newly elected 8th District Republican state Sen. Dan Knodl (R-Germantown) seemed to suggest a willingness to consider this. When asked about Protasiewicz he said he was willing to consider impeachment against her. “If there are some that are out there that are corrupt, that are failing at their tasks, then we have the opportunity to hold them accountable,” Knodl told WISN-TV’s UpFront last month.

More recently, Senate Majority Leader Devin LeMahieu (R-Oostburg), downplayed this: “To impeach someone they would need to do something very serious, so no, we are not looking to start the impeachment process as a regular occurring event in Wisconsin,” he said. And Knodl has since walked back his statement saying he was referring to removing Protasiewicz as a circuit court judge, not as a Supreme Court justice.

But the Republican-led Senate refused for four years to approve most of Gov. Tony Evers’ cabinet appointments. They have shown a repeated willingness to use any lever of power to their advantage. A Supreme Court decision overhauling the Republican gerrymander could put the jobs of many GOP legislators at stake and might well make them look for some way to turn the tables on the state Supreme Court.

Except. Should the Senate vote to remove Protasiewicz or any other Supreme Court justice, under state law, when such a vacancy is created on the court, the governor appoints their replacement. Gov. Evers could simply reappoint Protasiewicz or some other perhaps more liberal judge or attorney to the court, who would then serve until the next election. That could prevent any temptation to impeach a justice the Republicans don’t like.

Aside from impeachment, the Legislature has another power, the “address process,” that can be used to remove judges or justices for “misconduct,” as the WW story noted. But that action requires a two-thirds majority vote of both houses, and the Assembly lacks enough Republicans for this.

Which kicks the issue back to the impeachment power, where Gov. Evers can thwart any attempt by Republicans to alter the balance of power on the Supreme Court.