Why a Wisconsin judge has become a national flash point before she even takes office

Janet Protasiewicz is sworn in as a Wisconsin Supreme Court justice.
Janet Protasiewicz is sworn in as a Wisconsin Supreme Court justice, Aug. 1. (Morry Gash/AP)

Wisconsin Republicans are considering impeaching a newly elected state Supreme Court justice before she even hears a single case, which could have reverberations for control of Congress and the swing state’s 10 Electoral College votes.

‘The most important election that nobody’s ever heard of’

Justice Janet Protasiewicz won April’s hard-fought election over conservative Dan Kelly by 11 points — a virtual landslide in the closely divided state — giving liberals a 4-3 majority on Wisconsin’s top court for the first time in 15 years.

With key cases on the horizon pertaining to abortion, legislative districts and how votes are cast and counted, both parties poured money into backing their preferred candidates in the nominally nonpartisan election.

Read more on Yahoo News: Wisconsin's new liberal supreme court majority likely to overturn abortion ban

“[The election] has implications that will affect national politics for years to come, really at every level of government,” Wisconsin Democratic Party Chair Ben Wikler told Politico, calling it “the most important election that nobody’s ever heard of.”

Key decisions that could determine election results

Wisconsin Supreme Court candidate Janet Protasiewicz
Protasiewicz celebrates at her election night watch party in Milwaukee, April 4. (Evelyn Hockstein/Reuters)

The court’s previous 4-3 conservative majority sided with Republicans in upholding a photo ID requirement for voters and prohibited absentee ballot drop boxes for absentee ballots. Such rulings could prove decisive in a state where four out of the last six presidential elections have been decided by less than 1% of the vote, Wikler argued.

The court also approved a state legislative map drawn by the Legislature’s Republican majorities that was so favorable to the GOP that if the vote went 50-50 statewide, 63 out of 99 Assembly seats and 23 out of 33 Senate seats would go Republican.

“That’s what you call rigged,” Rep. Mark Pocan, D-Wis., a former Wisconsin state Assembly member, told the Associated Press on Sunday.

Since the Legislature also draws congressional district boundaries, the entrenched GOP control allows the party to give itself an outsized share of Wisconsin’s congressional seats. The state has six Republican members of the House of Representatives, versus only two Democrats.

When Republicans tried to get the 2020 presidential election result overturned — Biden carried the key state — the court rejected the effort 4-3.

Wisconsin legal experts told Yahoo News that without another liberal on the bench, future GOP bids to overturn elections could succeed.

Impeachment debate

Wisconsin Assembly Speaker Robin Vos
Wisconsin Assembly Speaker Robin Vos, a Republican, at the state Capitol in Madison in 2021. (Scott Bauer/AP)

Republicans in the Legislature have called on Protasiewicz to recuse herself from redistricting cases because she received campaign donations from the Democratic Party and she referred to the legislative district maps as “rigged.”

Republican Assembly Speaker Robin Vos told the AP he is considering impeaching Protasiewicz if she does not recuse herself.

The AP noted that “the state GOP and other conservative groups have given campaign cash to other sitting justices, and they’re not recusing themselves on cases involving donors.” And the outlet reported that conservative justices have also taken positions on controversial issues that could be subjects of future litigation.

“One conservative justice frequently spoke out in favor of gun rights during her campaign. ... Another had previously called Planned Parenthood, a frequent litigant in abortion cases, a ‘wicked organization,’” the Associated Press reported. “Both conservatives and liberals have weighed in on topics that could come before the court, sometimes in strikingly strong language.”

The Wisconsin Judicial Commission last week dismissed complaints against Protasiewicz that alleged she violated the judicial code of ethics with her comments on the maps.

What happens next?

Wisconsin Gov. Tony Evers, a Democrat, at his annual State of the State address on Jan. 24.
Wisconsin Gov. Tony Evers, a Democrat, at his annual State of the State address on Jan. 24. (Morry Gash/AP Photo)

If the Assembly impeaches Protasiewicz and the state Senate convicts her and removes her from office, Democratic Gov. Tony Evers could appoint her replacement.

But under the state constitution, “no judicial officer shall exercise [her] office, after [s]he shall have been impeached, until [her] acquittal,” and no one is appointed to replace her until her trial is complete. So if Protasiewicz is impeached but the state Senate never holds her trial, it would create an indefinite vacancy on the court. With the court split 3-3, it could effectively freeze on partisan issues.

The Wisconsin Constitution calls for impeachment for “corrupt conduct in office, or for crimes and misdemeanors.” Only one state official has previously been impeached, in 1854, for accepting bribes. According to the New Yorker, there is no record in American history of a judge being impeached for failing to recuse herself due to campaign statements.

Liberal legal commentators speculate that an impeachment could be overturned in federal court, but that such a process would take years to play out.