The Legal Trickery of Robin Vos

Assembly Speaker Robin Vos. File photo by Coburn Dukehart / Wisconsin Watch.

I’ve lost count of how many times Assembly Speaker Robin Vos has changed his stance on whether Republicans would impeach recently elected Supreme Court Justice Janet Protasiewicz. Republicans are scared to death she could join three other liberal justices to overturn the gerrymandered maps that gives them a huge advantage in elections. In their fear of losing office, they are trying every tactic, no matter how questionable its legality or constitutionality.

Even before Protasiewicz was elected to the high court, Republicans were threatening she could be impeached, and her thundering, 11-point margin of victory only served to increase their fright and toughen their demands that she recuse from the redistricting case or face impeachment. 

There were numerous problems with this legal ploy. First, the idea that Protosiewicz stated an opinion that might prejudge her decision on a redistricting case by calling the state’s legislative maps “rigged” was flat wrong, as Urban Milwaukee Data Wonk columnist Bruce Thompson has documented. It was a statement of fact that can be easily proven.

Second, even if Protasiewicz had expressed an opinion, there’s no precedent for throwing a justice out of office for doing so. Conservative Justice Brian Hagedorn once compared homosexuality to bestiality, slammed Planned Parenthood as “a wicked organization” and wrote that “Christianity is the correct religion, and those who “contradict it… are wrong.” Yet he has maintained that those statements would not require his recusal on cases about abortion, gay rights or religion. And there has been no action to remove him from office.

As the Wisconsin Judicial Commission wrote in a decision dismissing Republican complaints against Protasiewicz (another questionable GOP ploy), past court cases have determined that justices and judicial candidates have the right to state opinions on political questions and can’t be prosecuted for this.

Third, even if Protasiewicz had violated the Judicial Code of Conduct, that is not an impeachable offense under the Wisconsin Constitution, as a story by Wisconsin Watch explained. The constitution states that Impeachment is intended for “corrupt conduct in office or for the commission of a crime or misdemeanor,” as the Legislature’s nonpartisan attorneys wrote in a memo. Even if Protasiewicz had stated an opinion, that would not amount to “corrupt conduct,” which historically has meant “bribery.”

The state constitution actually provides a quite different remedy for removing justices who violated the Judicial Code of Conduct, which is called “address” and that requires a two-thirds majority vote of the Assembly. But Republicans don’t have a two-thirds majority in that house, so they instead have been pushing impeachment, which requires only a simple majority. More legal trickery.

Fourth, even if they ignored the clear language of the Constitution to impeach Protasiewicz, Republicans had no intention of finding her guilty in the Senate (which would allow Gov. Tony Evers to appoint a replacement judge), but to simply delay taking action, forcing Protasiewicz to step down from the court while awaiting a trial that might never happen. This, too, is a tactic for which there is no legal precedent in Wisconsin.

The sheer outrageousness of the Republicans’ legal trickery led Democrats in Wisconsin to launch a $4 million, multi-pronged campaign to fight the GOP’s impeachment effort. Given a past poll showing 72 percent of Wisconsin voters want a nonpartisan commission to draw the legislative and congressional district maps instead of elected officials, such a campaign by Democrats was not something Vos could take lightly.

So the ever ambidextrous Assembly Speaker dropped the idea of impeachment and announced the Republicans would support an Iowa-style, nonpartisan commission to draw legislative maps. But the bill gave power to a majority of the Legislature (or a bipartisan majority including one Democrat) to amend the maps created by the nonpartisan Legislative Reference Bureau. The earlier Democratic proposal had required a three-fourths vote of the Legislature to assure a truly bipartisan decision. So Gov. Evers threatened to veto the bill that Vos and the Assembly passed.

Without missing a beat, Vos shifted strategies again, offering perhaps his most bizarre ploy, to convene a secret panel of former Supreme Court justices to advise Republicans on impeaching Protasiewicz. Yes, we’re back to impeachment.

Vos told WISN-AM that he was “asking a panel of former members of the state supreme court to review and advise what the criteria are for impeachment and to be able to go to the next step of this process.”

The idea that there is some mystery to what the criteria is for impeachment is nonsense, and Vos knows it. The state Constitution could hardly be clearer: the official must be guilty of a crime or misdemeanor or of corruption (and the only judge in state history found guilty of corruption was for bribery). Protasiewicz is guilty only of getting elected.

To compound the silliness, Vos has refused to disclose the names of the panel’s three members. This has set off a search mission by the media to call ex-justices and so far only David Prosser has confirmed he agreed to serve, as the AP reported. Does Vos actually have three members on the panel? Or even two? No one knows.

But the one known member, Prosser, donated $500 to support Protasiewicz’s opponent in the April election and as a justice refused to recuse on cases involving a law he helped pass as a legislator, the AP noted. Prosser was also involved in an infamous incident where he faced a complaint filed with the Judicial Commission accusing him of strangling Justice Ann Walsh Bradley. Prosser said he put his hands on her and didn’t apply pressure and a divided Supreme Court took no action on the incident. This is the man whom Vos wants to advise him on the proper ethics required of justices.

On Monday the liberal watchdog group American Oversight filed a legal complaint in Dane County Circuit Court to prevent this legal panel from meeting in private, arguing that is a governmental body and therefore must meet in public.

The hardball tactics of Vos are easy to deride: a punchy column for The Bulwark by veteran Wisconsin journalist Bill Lueders caricatures the Assembly Speaker as “peevish, petulant, reflexively retributive. It is governance by temper tantrum.”

But Vos is also a tough tactical strategist, as the column shows. As led by him, the whole approach of the Republicans is to keep up the pressure on Protasiewicz and use every possible method of attack. Merely the threat of impeachment, which they have repeatedly used against Protasiewicz, is intended to intimidate her (and elections commission leader Meagan Wolfe), as Bruce Thompson has argued.

The other part of the strategy is to keep the other side guessing on what comes next. Just as Democrats were launching ads decrying an impeachment effort, Vos declared that was no longer being pursued.

He is playing for time and looking for any way to take down Protasiewicz. I don’t think he will succeed, but Democrats underestimate him at their peril.