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Entrance to the Wisconsin Supreme Court.
The state Supreme Court now has a solid liberal majority. Will these justices embrace a recusal rule?
There is a backstory to the new request from five retired Circuit Court judges who want the state Supreme Court to establish recusal rules that would specify what conflicts of interest require judges to withdraw from pending cases.
It was January 2017, and 54 current and former Supreme Court, Court of Appeals and Circuit Court judges were worried.
The 54 were alarmed about what the 2016 campaign for a Supreme Court seat had cost, and the source of that spending.
The Wisconsin Democracy Campaign estimated that $5.6 million had been spent on the 2016 election, with most of that coming from third-party groups. And that was 10 times the $530,390 total that the Brennan Center for Justice estimated was spent in the 2015 race for another Supreme Court seat.
“As money in elections becomes more predominant, citizens rightfully ask whether justice is for sale,” the 54 judges said in their 2017 petition. It asked the Supreme Court for “an objective standard requiring recusal or disqualification of a judge when he or she has received the benefit of campaign contributions or assistance from a party.”
“The appearance of partiality that large campaign donations cause strikes at the heart of the judicial function, which depends on the public’s respect for its judges,” said the petitioners, who said they had more than 1,100 years of experience as sitting Wisconsin judges.
“In this age of Super PACs and other independent campaign organizations, perhaps the influx of money to purchase access to legislators has numbed us to ethics. But we are not the Legislature, we are the judiciary.”
The 54 judges quoted a 2009 ruling by the U.S. Supreme Court justices who said a West Virginia Supreme Court justice should have recused himself from a case where one of the parties had contributed huge amounts in support of the justice’s election.
“It is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process,” the U.S. Supreme Court said.
Conservative justices then in control of the Wisconsin court did not respond to the 2017 petition. Supreme Court justices decide for themselves when to not participate and, when asked to recuse themselves, don’t have to give a reason for their decision.
But spending in Supreme Court elections has exploded, largely because of cash from political parties and independent groups.
More than $51 million was spent on the 2023 race between Justice Janet Protasiewicz and former Justice Dan Kelly, according to the Democracy Campaign.
But the more than $100 million spent on the 2025 race between Justice Susan Crawford and Waukesha County Circuit Court Judge Brad Schimel was the most expensive judicial election in the nation’s history.
It also set records for donations from political parties and third-party groups. The Democracy Campaign reported these totals:
Crawford “raised more than $33.7 million — about $21.1 million from individuals and $12.6 million from PACs and the Democratic state party. Schimel…raised about $15.7 million — with roughly $5.9 million from individuals and $9.9 million from PACs and Republican-aligned groups and parties.”
In the new petition, the five retired Circuit Court judges offered specific new rules the Supreme Court could adopt governing donations to candidates’ campaigns and third-party spending.
“A judge shall recuse in a proceeding if, based on the facts and circumstances the judge knows or reasonably should know, any support of the judge’s candidacy…or a contribution to the judge’s campaign by any individual or entity raises a reasonable question concerning the judge’s ability to be impartial,” their proposal states.
The petition also says a judge must also withdraw from a case if they know of “an independent expenditure or issue advocacy communication…by an individual or entity raises a reasonable question concerning the judge’s ability to be impartial.”
Retired judges who signed the petition are Sarah O’Brien, Richard Niess, John Markson, J. David Rice and Richard Sankovitz.
Three liberal justices elected since 2023 — Protaciewicz, Crawford and Chris Taylor, who will join the court this fall — were elected with large donations and voter turnout efforts from the Democratic Party of Wisconsin.
The court, which will have a 5-2 liberal majority next term, set a June 4 public hearing on the request for recusal standards.
The plea of the 54 judges in 2017 still echoes in the Supreme Court chamber: “The fundamental purpose of this proposed rule is to ensure the public’s confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system.”
Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com.
