When Assembly Speaker Robin Vos floated the idea of impeaching newly seated Justice Janet Protasiewicz a couple weeks back, that’s what I thought it was: a float, a trial balloon. It looks like the balloon is going to stay aloft. In fact, impeachment looks like such a sure bet now that Democrats have announced a $4 million campaign against it and their rhetoric suggests that impeachment will happen, but they want to make sure it comes with the greatest political cost possible for the Republicans.
Let’s think through the moves in the chess game. The Assembly can impeach Protasiewicz on a simple majority vote and Republicans easily have those votes. Then the Senate could remove Protasiewicz from office on a two-thirds vote, which they also have, 22-11, assuming all the Republicans stay with the program. But then it looks like checkmate by the Democrats because Gov. Tony Evers gets to appoint Protasiewicz’s replacement. He’d appoint a liberal and we’d be back to square one.
Except for this.
If the Assembly votes to impeach, Protosiewicz has to stop functioning as a justice. She can’t vote. And if the Senate holds up action on her impeachment there’s no vacancy for Evers to fill. Essentially Protasiewicz is in limbo and the court is tied, with three conservatives and three liberals. If the Senate holds onto this long enough it gets to be too late to redraw the maps for 2024. That means, without a liberal majority, the Republicans’ gerrymandered maps remain in place as does the 1849 law banning virtually all abortions.
And there’s another wrinkle which presents a conundrum for the Republicans. If they were to convict her before Dec. 1, Evers gets to replace her, but then he has to schedule a special election for April. With what could be a hotly contested Republican presidential primary (unless it’s not) that could be an election with high Republican turnout. But removing her from office that early could give the Evers-appointed justice and liberal majority time to establish new maps.
I don’t see how the Assembly has any legal grounds to impeach since Protasiewicz has neither committed a crime nor acted in a corrupt manner, two standards for impeachment. What Vos has said is that she has prejudged the redistricting cases by calling the current maps “rigged,” but Protasiewicz can argue that saying the maps are rigged doesn’t mean that she still can’t find that there is no compelling legal argument to overturn them.
And then there’s the sheer hypocrisy of it. As the New York Times has pointed out (yes, this is making national news): “In years past, conservative justices have argued that personal views they had previously stated did not mean they were required to recuse themselves from relevant cases. For example, Justice Brian Hagedorn once compared homosexuality to bestiality, called Planned Parenthood “a wicked organization” and wrote that “Christianity is the correct religion, and that insofar as others contradict it, they are wrong.” He has said those statements would not warrant his recusal on cases about abortion, gay rights or religion.”
Look, Protasiewicz committed unforced errors that helped put her in this spot. During the campaign she went way too far in signaling how she’ll vote on redistricting and on abortion. Simply having Evers, Sen. Tammy Baldwin and Planned Parenthood endorse her and having her opponent, Daniel Kelly, be himself would have been more than enough. This week Protasiewicz released a letter she received back in May from the Wisconsin Judicial Commission clearing her of any violations of the Judicial Code of Conduct because she didn’t explicitly promise her vote, but she certainly violated the spirit of the code.
And there was simply no reason for her to promise to recuse herself from cases involving the Democratic Party knowing full well that she was going to vote on the redistricting cases and there is no issue more important to the party. The fact that the party isn’t a formal party in the suit is immaterial.
But again, violating the spirit, but not the letter, of the Judicial Code of Conduct and breaking a campaign promise are not impeachable offenses. Nonetheless, I suspect Vos will ignore that and impeach her anyway. His gerrymandered maps are existential to his hold on power. He’s not going to let them go when he has what appears to be a sure-fire way to keep them in place.
If this plays out this way, what happens next? In addition to the Democrats’ $4 million campaign (I’ll bet it’ll be a lot more when national donors kick in), I’d expect big protests around the Capitol and all kinds of legal action. My guess is that liberal lawyers will need to find a way to get into federal court since the ultimate arbiter of state claims is the Supreme Court and they’ll sit in a three-to-three stalemate.
The downside for Vos is not so much redistricting, which only Democratic voters feel strongly about, but abortion. Republicans have been taken to the woodshed by voters over abortion ever since Roe v. Wade was overturned. In fact, Protasiewicz won precisely because it is expected she’ll vote to overturn Wisconsin’s 1849 criminal abortion statute. If this is seen for what it is — an attempt to overturn the public’s will on abortion — there may be true hell to pay at the polls for Republicans next year. That still won’t be enough to deliver the still heavily gerrymandered legislature to the Democrats, but it could well deliver Wisconsin solidly to Joe Biden and return at least one, if not two, congressional districts to Democrats.
And then, of course, liberals could harness that anger to recall one or more of the conservative justices. That takes 340,000 signatures, but reproductive rights is a powerful motivator.
Vos may fear that backlash or get enough pushback from national Republicans to back down from his threat. We’ll see. But right now it looks to me like we’re headed for impeachment.
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.
