3 Scenarios For GOP Threats Against Protasiewicz

Janet Protasiewicz. Photo courtesy of Janet Protasiewicz’ campaign

The attempt by Republican legislators to blackmail Justice Janet Protasiewicz to recuse herself from the Wisconsin Supreme Court’s consideration of challenges to the state’s gerrymander is a threat to the independence of the court.

Will it be successful? Here are three scenarios as to how it will play out:

Scenario 1: Protasiewicz announces she will recuse from upcoming cases challenging the redistricting and the legality of abortion. Even if she claims that she made this decision after realizing the wisdom of doing so, it will be widely believed, by both friend and foe, that the real reason was that she was spooked by threats from Republican legislators that not recusing could trigger her impeachment.

This scenario is the most dangerous to democracy, in my view. It would invite the Legislature to blackmail the courts whenever legislators strongly disagreed with the courts by threatening impeachment. It does, however, fit in with this legislature’s habit of taking away powers of the other two branches of the government. This is reflected in the infamous “lame duck session” following Scott Walker’s defeat by Tony Evers, which moved decision-making powers from the governor and the attorney general to the Legislature. It also shows up in the difficulty that Evers has in getting his nominations acted upon by the state Senate.

Scenario 2: Protasiewicz announces she will not step aside. Republicans in the state Assembly promptly vote to impeach her. The state Senate, however, takes no action leaving her in limbo, under a provision of the state constitution that says that “No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal.” Protasiewicz is effectively removed from the court for as long as the Senate chooses to delay.

Scenario 3: As with Scenario 2, the Assembly impeaches Protasiewicz for not recusing. But rather than accept impeachment, Protasiewicz (or the Wisconsin Department of Justice) sues the Legislature. There are several reasons to expect that a district court would be sympathetic to her argument.

First, using impeachment in a disagreement about recusal violates the Wisconsin Constitution, which limits impeachment to “corrupt conduct in office, or for crimes and misdemeanors.” An argument about recusal fits none of those categories.

Second, impeachment done on such flimsy grounds is a serious threat to the independence of the judiciary. It would effectively give the Legislature veto power over actions of the courts.

Finally, the Wisconsin Judicial Commission has already considered and rejected a complaint about Protasiewicz. writing in a letter to her, “Please be advised that the Commission dismissed these complaints without action.” While the commission did not go into detail as to its thinking, it did refer to three cases that it considered in reaching its decision.

Republican Party of Minnesota v. White is the first of these. This involved an individual who wanted to run for judge but was prevented by Minnesota’s canon of judicial conduct from discussing the issues he wanted to run with. Justice Antonin Scalia delivered the opinion of the Court, joined by William Rehnquist, Sandra Day O’Connor, Anthony Kennedy, and Clarence Thomas. John Paul Stevens filed a dissenting opinion, joined by David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Scalia’s decision concluded that:

The Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.

The commission commented that this decision meant “that a restriction on an announcement by a candidate for judicial office of his or her views on disputed legal and political issues during a campaign violates the First Amendment.”

The second case is Duwe v. Alexander, a 2007 Wisconsin case. It grew out of the reluctance of judicial candidates to reply to a questionnaire from Right to Life. Federal District Judge John Shabazz declared that judges were free to respond, declaring that:

There is a very real distinction between a judge committing to an outcome before the case begins, which renders the proceeding an exercise in futility for all involved, and a judge disclosing an opinion and predisposition before the case.

The commission commented that this case: “outlines the distinction between: (a) a promise, pledge or commitment; and (b) an announcement of personal views made during a campaign.”

The third case referenced by the Judicial Commission is called Re Gableman. This was triggered by a complaint from the Judicial Commission to the Wisconsin Supreme Court that Michael Gableman had published a misleading ad against Justice Louis Butler in his campaign for Supreme Court. A panel of three judges concluded that, although the statements made by Gableman about Butler were misleading and implied that past representation of a criminal defendant made Butler less qualified, Gableman did not clearly make any factual misrepresentations, and, thus, the statements could not form the basis for discipline.

The theme underlying these three cases is that as an individual, a judge, and a candidate for judicial office, is entitled to his or her personal view on political questions and to rights and opinions as a citizen. Certainly, Protasiewicz was right that the Wisconsin district map was “rigged” to assure that Republicans dominated the state Assembly and Senate, but even if she was wrong she had a right to state her opinion.

Perhaps ironically, judges considered conservative were part of the decisions in all three of these cases. Scalia was widely considered the leader of the conservative justices on the U.S. Supreme Court. Before being appointed by Ronald Reagan to the court, Shabazz was the Republican Minority Leader in the Wisconsin Assembly. One of the three judges on the Re Gableman panel was Ralph Adam Fine, the conservative Milwaukee judge and television personality.

The complaint to the Judicial Commission accused Protasiewicz of “pledging to voters that she will invalidate Wisconsin’s current legislative maps.” But such a pledge was precisely what she avoided. She was careful not to specify how she would vote if elected on the questions that she and her colleagues on the court would face, including:

• Does the state constitution permit or mandate that the map should be revised to eliminate the rigging?
• If the answer to the first question is “yes” who should be responsible for drawing new maps? The three liberals previously suggest that a panel of federal judges should be responsible since they are appointed for life which makes them resistant to partisan considerations. This was the common practice in years before 2010. The result was a slight tilt to Republicans, but small enough to allow Democrats to win most districts in some years.
• Should the aim of the map makers ignore partisan considerations or create maps that both parties have an equal chance of winning a majority of seats?

In short, there is considerable case law suggesting Protasiewicz had every right to state her opinions on issues like gerrymandering and abortion, and was not therefore in violation of the judicial code of ethics, as the Wisconsin Judicial Commission clearly concluded. Should she be impeached she would have ample grounds to sue.