Dems launch defense of Protasiewicz as GOP impeachment threats continue

Wisconsin Democrats are warning that Republican lawmakers could initiate a constitutional crisis if they follow through with threats to impeach state Supreme Court Justice Janet Protasiewicz over campaign comments and donors. 

To back up that warning, Democrats announced a plan to pressure Republicans to “do the right thing and defend our democracy.” 

In the month since Protasiewicz ascended to the state’s highest court, Republicans and conservatives have been accusing her of partisanship and bias — despite the fact that she has yet to hear a case. The claims of unfairness have come after voters elected Protasiewicz, creating a  4-3 liberal majority on the Court for the first time in 15 years. Challenges to the state’s gerrymandered political maps threaten Republican power. 

Protasiewicz was elected in April by an 11 point margin, a massive advantage in the normally closely divided state. Since early August when two lawsuits were filed seeking to have the Court toss out the Republican-favoring legislative maps, Republicans and some of the remaining conservative justices have regularly called for Protasiewicz’s recusal from the cases, arguing that comments she made during her campaign that the maps were “rigged” and millions of dollars in campaign donations she received from the state Democratic Party amount to conflicts of interest and require her recusal. 

When conservatives controlled the Court, they set the body’s recusal rules to state that justices are not required to recuse themselves from cases involving their own campaign donors. The Democratic Party isn’t a litigant in either of the lawsuits challenging the maps and on Tuesday, Protasiewicz released a letter from the state Judicial Commission announcing that complaints about her campaign comments had been dismissed. 

Still, Republicans — led by Assembly Speaker Robin Vos (R-Rochester) — continue to bang the drum for starting impeachment proceedings. 

If Vos moves forward, a majority of the Assembly would need to vote to impeach Protasiewicz and then a two-thirds majority of the Senate would be required to convict and remove her from office. However once the Assembly votes to impeach, the state constitution requires that she stop all of her duties — effectively putting the pending cases in an indefinite limbo. 

To put the cases back on track if the Senate refused to act, Protasiewicz could resign — giving Democratic Gov. Tony Evers the opportunity to appoint a replacement to the new vacancy. State law requires that if the vacancy is created before Dec. 1, that replacement would need to face re-election in next April’s spring election, which would align with the Republican presidential primary. If the vacancy is created after Dec. 1, the election of Evers’ appointee would be pushed to the next spring election in which a Supreme Court seat isn’t already set to be up, which would be 2031. 

The state constitution’s judicial impeachment clauses are largely untested. Only one judge in state history has faced an impeachment trial — in 1853. It’s not clear what would happen if Protasiewicz were impeached in the Assembly, resigned before being convicted and then Evers immediately reappointed her to the seat. The state constitution also doesn’t consider the possibility that the Legislature could continue impeaching Evers’ judicial appointees, effectively stopping another branch of government from functioning. 

“It does beg some real constitutional issues and you do look at something of a constitutional crisis here,” says John Nichols, an associate editor of  the Cap Times and national affairs correspondent for the Nation, who has written a book about impeachment. “What you’ve ended up with, because of how the constitution is written, you’ve got the ability of one branch to shut down another branch. This is really uncharted territory where you have a constitution that hasn’t really been interpreted in this regard, it’s very vague and there’s a lot of space to fill in the blanks. There’s a lot that courts could wrestle with. Unfortunately the logical court that could wrestle with it is the state Supreme Court and they’re not going to be in a position to deal with it. It’s an Alice in Wonderland situation, the court that’s supposed to interpret constitutional issues having a constitutional issue.”

In response to the Republican impeachment threats, the state Democratic Party and Democratic lawmakers have announced a $4 million dollar effort to defend Protasiewicz from the impeachment threat  through ads, phone calls and a door knocking campaign, seeking to put pressure on GOP lawmakers to reject impeachment in districts that voted for Protasiewicz. 

“Wisconsin voters have demanded the right to determine their own destiny, the right to have their vote counted, to start a family on their own terms, to equal treatment under the law,” Assembly Minority Leader Greta Neubauer (D-Racine) said at a Wednesday news conference. “In response, legislative Republicans have threatened impeachment to restrict abortion rights, to hold on to their illegitimate majorities and to consolidate power, even if it means overriding the results of the April election.” 

She added that moving forward with impeachment would “destroy the integrity of the Legislature,” and noted that a dozen Assembly Republicans represent districts that voted for Protasiewicz. 

Vos said in a statement Wednesday that the Democratic spending to defend Protasiewicz is another sign that she would rule in favor of Democrats.

“All this does is prove that Justice Protasiewicz and the Democrat Party are one and the same,” Vos said. “The timing of yesterday’s order from Justice Protasiewicz and the Democrat Party’s immediate press conference announcing $4 million dollars in attack ads supporting Justice Protasiewicz’s involvement is further indication of coordination between the two. We fully expect Justice Protasiewicz will recuse herself from handling a case where she has pre-decided the outcome and the Democrat party is fully involved.”