A dumpster fire with the Wisconsin Supreme Court logo on it.
Let’s face it. The Wisconsin Supreme Court is a hot mess.
Let’s review.
For over a decade Republicans, and Wisconsin Manufacturers and Commerce in particular, took aim at the court, while liberals and Democrats pretty much slept in. It started in 2008 when the eminently qualified — and first Black — Justice Louis Butler was defeated by Michael Gableman, who was neither of those things.
The WMC was not trying to elect thoughtful jurists who would carefully weigh the legal arguments and simply give them a fair chance. They were out to put a conservative, pro-business majority on the court. And they succeeded beyond their wildest dreams. They even got the state constitution changed to oust liberal Chief Justice Shirley Abrahamson and replace her with a conservative to lead the court.
Liberals finally started to fight back, but on the cusp of retaking the court in 2019, Lisa Neubauer came up 6,000 votes short to conservative Brian Hagedorn. It took them four more years to get another chance.
Their chance came again in June 2022 when the United States Supreme court overturned Roe v. Wade, removing constitutional protections for abortion and throwing the issue open to the political process. That may have been a tragic decision on the merits, but it was the best thing that ever happened to the Democrats. All of a sudden, abortion was the issue and, with about two-thirds of Americans being pro-choice, it was a boon for Team Blue.
So, as you would expect, in the race for an open seat this spring, liberal Milwaukee Circuit Court Judge Janet Protasiewicz ran on abortion and, to a lesser extent, gerrymandering. After an ugly campaign on both sides, which broke national spending records for court races, she defeated conservative Daniel Kelly. The liberals would finally have their majority when she took her seat in August.
But Protasiewicz did two things during her campaign that would come back to haunt her. She violated the spirit, if not the letter, of the Wisconsin Code of Judicial Conduct by all but promising to vote to restore abortion rights and to strike down the Republicans’ gerrymandered legislative district maps. She didn’t use the magic words, “I promise I will vote to...” but she came damn close.
Her other mistake was to, inexplicably, promise to recuse herself from any case involving the Democratic Party because the party had shoveled loads of money into her campaign. I scratched my head when I heard her say that. Lots of interests gave her lots of money. Why promise to recuse herself just on cases involving the Democrats? More to the point, any average person would assume that, if she were to make good on her pledge, she would have to recuse herself from the redistricting case, which she had already promised to vote on.
Now that the case is at the court, Protasiewicz is saying she doesn’t have to recuse herself because the Democratic Party isn’t a formal party to the suit. That’s ridiculous. There will be no case more important to the Democratic Party for the next decade and the party has the clearest interest possible in its outcome. She’s breaking her campaign promise — which was nonsensical from the start — plain and simple.
Protasiewicz was sworn in earlier this month and before the ink was dry on the official documents the liberal majority had stepped on their own story. Instead of basking in their new found power for a while, their first act was to fire Randy Koschnick, the courts administrator who, by all accounts, had been doing a fine job. Even journalist Bill Lueders, who heads the Wisconsin Freedom of Information Council, had nice things to say about Koschnick, and Lueders is not known for going easy on any public official. I have experience in this matter.
The liberals offered no explanation, leaving it for cynics like me to assume that he was sacked because he had the temerity to challenge Abrahamson for her seat (he was a circuit court judge) way back in 2009. Then they compounded that by quickly moving to hire Milwaukee Circuit Court Judge Audrey Skwierawski to replace Koschnick. While she had been appointed to her judgeship by Republican Gov. Scott Walker, she must know Protasiewicz since both served as judges in Milwaukee. The whole thing smacked of political patronage, something not uncommon in the other two branches, but something that the court — technically a nonpartisan body — is supposed to be above. And then, to be fair, we have to note that Koschnick, while apparently good at his job, was also probably appointed by the conservative majority because he was a conservative.
To ensure that this story won’t go away any time soon, Koschnick has filed complaints against the four liberal justices and Audrey Skwierawski with the Wisconsin Judicial Commission alleging that Skwierawski is prohibited from taking Koschnick's former position until her term as a circuit court judge ends.
Then the liberals met in secret to change court rules. Some of those changes were good. They threw back open the doors of deliberations over court management by making those meetings public again after conservatives had shut them down in 2012. But, of course, they did that only after voting in secret to fire and replace Koschnick. In so doing, they took a positive step and drenched it in cynicism.
And, in a blatant power grab, they essentially stripped conservative Chief Justice Annette Ziegler of her authority. Their new rule is that Ziegler will be joined by two justices selected by the majority — the liberals — in making significant decisions. For all intents and purposes, the liberals now run the court and Ziegler is just a figurehead — a move that will come back to haunt them when the tables are turned. But again, to be fair, this was tit for tat after Republicans changed the rules to unseat Abrahamson.
For their part, the conservatives have acted no better. While liberals are stonewalling on their reasons for replacing Koschnick, the conservatives are foaming at the mouth about all this. When the court voted to move toward taking up the gerrymandering case last week, conservative Justice Rebecca Bradley let loose with an undignified rant.
“(The liberals) will adopt new maps to shift power away from Republicans and bestow an electoral advantage for Democrat candidates, fulfilling one of Protasiewicz’s many promises to the principal funder of her campaign,” Bradley wrote in her dissent. “Entertaining these claims makes a mockery of our justice system, degrades this court as an institution, and showcases that justice is now for sale in Wisconsin. ‘Rigged’ is indeed an apt description — for this case.”
Okay, well, let’s pull that statement apart.
“Democrat” candidates? To refer to the Democratic Party — it’s official name — as the Democrat Party has been a partisan Republican snub for years. For an allegedly nonpartisan justice to use that term is telling about her own impartiality.
Bestowing an electoral advantage for Democrats? Wait a minute. The court conservatives didn’t do exactly that for Republicans when they ruled last year that they would stick closely to maps first gerrymandered heavily in the GOP’s favor back in 2011? And even when liberals redraw the maps, under the plan favored by Gov. Tony Evers, Republicans are still expected to enjoy a 55-44 majority in the Assembly, down from their current 63-36 edge, but hardly “bestowing an electoral advantage for Democrats.”
Making a mockery out of our justice system and degrading this court? Quite a statement coming from Bradley who in 2021 voted to accept a case which, without evidence, sought to overturn election results awarding our electoral votes to Joe Biden. The case did not go forward only because conservative swing Justice Brian Hagedorn joined the liberals in rejecting it.
Justice is now for sale in Wisconsin? Only now? Justice has been for sale in Wisconsin since at least 2008 when the highly respected Butler was defeated, with WMC’s money, by the ludicrous Gableman, who went on to embarrass even the Republicans with his clownish “investigation” of non-existent voter fraud in the 2020 election.
Assembly Speaker Robin Vos, who appointed Gableman to that “investigatory” role, is now doubling down on all of this by suggesting he might move to impeach Protasiewicz. For what, exactly? She violated the spirit of the Code of Judicial Conduct and she will break her campaign promise by voting on the gerrymandering case, but those are hardly impeachable offenses. You want an impeachable offense? Voting to overturn the results of a free and fair election, as Bradley and two other conservatives did in 2021.
This court has virtually no credibility as an impartial, thoughtful, nonpartisan and fair body. To apply school yard logic, it’s true that the conservatives and the Republicans started it. But the Democrats and the liberals have only accelerated the race toward oblivion.
[Editor's note: This post was corrected to note that Randy Koschnick has filed complaints against the four liberal justices and Audrey Skwierawski with the Wisconsin Judicial Commission. He has not filed a lawsuit to get his former job back.]
Dave Cieslewicz is a Madison- and Upper Peninsula-based writer who served as mayor of Madison from 2003 to 2011. You can read more of his work at Yellow Stripes & Dead Armadillos.
