The Wisconsin GOP’s threat to impeach a judge is playing with fire

Wisconsin Republicans have moved past election denial, straight to election nullification.

If the GOP follows through on its threats, it will impeach a newly elected Supreme Court justice before she has ruled on any major case. It’s hard to imagine a more direct attack on democracy than overturning an election — or a more direct attack on the independent judiciary — but Republicans in the Badger State appear to be fully prepared to do just that. And if they go through with it, it will have huge ramifications in a crucial swing state in 2024.

Even though the GOP may be having second-thoughts, state legislative leaders are still keeping the option open, because they see the new 4-3 liberal majority on the state’s high court as an existential threat to their power.

To understand why this is happening, we need to look at the numbers:

It’s impossible to overstate the degree to which state Republicans feel entitled to their gerrymandered majorities.

There are 99 seats in the Wisconsin state Assembly. 

In the 2018 midterm elections, Democratic candidates won 53% of the vote. But because of the way Republicans had drawn the districts, they won 63 seats.

In 2022, Republicans won 53% majority of the statewide legislative vote, but still won a supermajority of 65% of the seats in the Assembly.

This is what a gerrymander looks like.

During the heated (and very expensive) race for the decisive seat on the Supreme Court earlier this year, then-candidate Janet Protasiewicz pointed out the obvious, calling the GOP-drawn maps “unfair” and “rigged.” 

She won the election by a staggering 11 points, receiving more than a million votes. Her victory flipped control of the court, giving liberals a majority for the first time in more than a decade.

It also enraged Republicans.

On election night, her conservative opponent, former Supreme Court Justice Daniel Kelly lashed out. “I wish, in a circumstance like this, I would be able to concede to a worthy opponent,” he complained, “but I do not have a worthy opponent to which I can concede.” He accused his opponent of running “the most deeply deceitful, dishonorable, despicable” race ever run for the courts and called her “a serial liar” who “has demeaned the judiciary with her behavior.”

That set the tone for much of the GOP reaction. But even though the Supreme Court election largely turned on abortion rights — and the fate of the state’s sweeping 1849 ban — Republicans have instead focused on the threat posed by the new progressive majority to their supermajority in the legislature. Liberal groups have filed lawsuits against the maps, and Protasiewicz has declined to recuse herself from the case. 

As I told The New York Times’ Michelle Goldberg last week, it’s impossible to overstate the degree to which state Republicans feel entitled to their gerrymandered majorities. They regard any threat as an existential crisis.

The Assembly’s powerful speaker, Robin Vos, has threatened to remove Protasiewicz, and former Gov. Scott Walker said that the Assembly was “obligated” to impeach Protasiewicz if she tried to rule on the maps.

“If she does not remove herself from the case, the members of the State Assembly should vote to impeach Justice Protasiewicz,” Walker told the Times.

But the whole debate over her recusal is rife with irony and hypocrisy. Conservative candidates for the state’s high court have frequently taken positions on high-profile, hot-button issues — from abortion to guns to LGBTQ+ rights — without triggering any such demands for recusal.

Until Protasiewicz’s election, conservatives had been adamantly opposed to any proposals to force judges and justices to step aside in cases in which they might have a conflict. In 2010, conservatives on the Wisconsin court voted to adopt rules (written by GOP-aligned business groups) that protected conservatives from demands that they recuse themselves from certain cases. 

As recently as 2017, a group of retired judges asked the court to prohibit justices from ruling on cases involving campaign donors. Justice Rebecca Bradley and the other conservatives killed the proposed rule.

The petition “asks us to infringe the First Amendment rights of the people of Wisconsin who wish to participate in judicial elections, either through supporting a candidate directly or speaking out on issues in a judicial race,” Bradley wrote in her opinion. “The people of Wisconsin, like everybody else in this country, have a First Amendment Right to do that. They have a First Amendment right to speak out in favor of the judges they support, and in opposition to the judges they oppose, without being penalized for exercising their free speech rights … In my mind, this petition is somewhat shocking in its disregard for the Wisconsin Constitution and the United States Constitution, particularly the First Amendment.”

But that was then. Bradley has now done a 180 and is leading the effort to force her new liberal colleague to recuse herself from the redistricting case.

A state judiciary disciplinary panel has even rejected several complaints that Protasiewicz violated the judicial code of ethics with her comments during the campaign. 

But that did not slow the GOP’s roll toward impeachment. Even though Republicans may now be having second thoughts, they have the votes to do it. They need only a bare majority of the Assembly to impeach her — which immediately suspends her from office — and a 22-11 majority in the state Senate to remove her from office. 

Here we come to a bizarre twist: If Protasiewicz is removed from the bench, Wisconsin Gov. Tony Evers, a Democrat, could immediately appoint her successor. Under the state’s Constitution, no Senate confirmation is required, so he could immediately restore the liberal majority, rendering the whole impeachment exercise moot.

But Senate Republicans say they have no intention of taking up the issue. They plan no hearings and no trial — no due process, no final verdict. As a result, the new justice would be placed in what amounts to permanent limbo. She would technically stay in office, but be unable to vote or rule on any cases. The court would be deadlocked 3-3. 

While the GOP-controlled state Senate has voted to fire the state’s nonpartisan elections chief (a move that’s likely to draw legal challenges), Republicans may be having second thoughts about exercising the nuclear option for the court. Belatedly, Republicans seem to recognize that undoing the election could generate a massive blowback (state Democrats are already pursuing a multimillion-dollar campaign to oppose the effort), and they may yet decide that holding onto power is worth the price. 

A do-over election next year would be an electoral nightmare for the GOP.

But the price could be much higher than they expect. Erasing the votes of more than a million Wisconsinites could permanently alienate the swing voters who have been edging away from the GOP in recent elections. The ads write themselves.

And a do-over election next year would be an electoral nightmare for the GOP. 

If Protasiewicz resigns or is removed, then whoever Evers appoints would stand for election in the spring of 2024, an election that would inevitably be about democracy and the rule of law — as well as abortion.

Wisconsin has a 19th century law on the books that bans almost all abortions, and its fate will be decided by the state’s high court. A 4-3 conservative court would almost certainly uphold the ban; a 4-3 progressive court would almost certainly overturn it.

Spring’s race — the most expensive state Supreme Court race in U.S. history — became a proxy referendum on the ban. And it wasn’t close.

If Republicans now choose to force a replay, a do-over post-impeachment vote guarantees that abortion would again be the dominant issue in this swing state throughout the presidential election year.

The bottom line: The GOP attack on democracy could be fatal. For the GOP.

All of this may now be dawning on the party. 

Earlier this week, Vos seemed to walk back the threat of impeachment when he proposed what he called an “off-ramp”: a nonpartisan, Iowa-style commission to redraw the legislative districts. But this last-minute proposal was quickly rejected by state Democrats, who noted that it would still give the GOP’s supermajorities a veto over the process. 

In response, Vos quickly resurrected the idea of removing Protasiewicz, announcing 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.” It’s unclear who is on the panel or what it might recommend, but the GOP’s dangerous game of judicial chicken continues.