In April, Janet Protasiewicz, a circuit-court judge in Milwaukee, was elected to the Wisconsin Supreme Court, shifting its balance of power to a 4–3 liberal majority. Her victory holds enormous implications for abortion rights, labor unions, voting rights, and, perhaps, the integrity of the 2024 Presidential election. (In 2020, the court ruled, by a single vote, against former President Donald Trump’s demand to throw out more than two hundred thousand ballots from the state’s two most populous Democratic counties; Joe Biden won Wisconsin by a tenth of that margin.) Protasiewicz’s place on the court might also mean the end of the extreme partisan gerrymandering that for the past twelve years has made Republican control of the Wisconsin statehouse virtually impregnable. The issue was central to Protasiewicz’s campaign; at a candidate forum, she called the state’s district maps “rigged.” “They do not reflect people in this state,” she said. “I can’t tell you what I would do on a particular case, but I can tell you my values. And the maps are wrong.” She later said that she would “enjoy taking a fresh look at the gerrymandering question.” Protasiewicz won by eleven points, a landslide in Wisconsin.
Her comments enraged Republicans, who are now threatening to impeach Protasiewicz if she does not recuse herself from two lawsuits challenging the maps. Only one official in the state’s history has been impeached, and that was in 1853. (Levi Hubbell, a judge, was accused of taking bribes; he was acquitted by the state Senate.) Wisconsin’s constitution sets a high bar for impeachment, reserving it for “corrupt conduct in office, or for crimes and misdemeanors.” But on August 11th, ten days after Protasiewicz was sworn in, Robin Vos, the Speaker of the Assembly, said, on a conservative talk-radio show, “You cannot have a judge who said, you know, the maps are rigged.” He went on, “Then she sits on that trial acting like she’s gonna listen and hear both sides fairly? That just can’t happen.” Last Tuesday, at a news conference, Vos reiterated his threat to pursue impeachment.
Republicans in the Assembly, who have sixty-four of the chamber’s ninety-nine seats, need only a simple majority to impeach Protasiewicz. A trial would then be held in the Senate, which requires a vote with a two-thirds majority—the exact proportion currently held by Republicans—to convict. If Protasiewicz is impeached, she would be barred from performing her duties while awaiting the trial. Some political observers have suggested that the Senate may delay holding one, which would leave Protasiewicz powerless and the court ideologically deadlocked. Others have suggested that Republicans may try to convict her by December 1st; Wisconsin’s Democratic governor, Tony Evers, could appoint a replacement—who would serve only until the next judicial election, which is in April, on the same date as the state’s Republican Presidential primary. (If Protasiewicz is convicted after December 1st, a replacement would serve until 2031.)
Robert Yablon, a professor of law at the University of Wisconsin-Madison, who has examined judicial impeachments across the country, has found no record of any judge in American history being impeached for failing to recuse herself owing to campaign activities, including statements made on the trail. He noted a 2002 U.S. Supreme Court case, whose majority opinion was written by Antonin Scalia, that gives wide latitude to judicial candidates to speak on political issues. Nor has Yablon found a judge who has been removed before hearing a single case. “This is a very vivid illustration of the kind of minoritarian rule that a gerrymander can get you,” he said.
The Princeton Gerrymandering Project has determined that Wisconsin’s Senate is the most gerrymandered legislative body in the United States, with a partisan bias favoring Republicans by nearly twenty percentage points. The current districts are based on maps drawn in 2011, after Scott Walker won the governorship and Republicans took control of both houses in the legislature. Since then, Republicans have always won at least sixty of the state’s ninety-nine Assembly seats, even when Democrats have won well over half of the aggregate statewide vote. In 2021, the Wisconsin Supreme Court, then controlled by conservatives, mandated that new maps, which are required by law to be created every ten years, adhere to a novel “least-change” standard, cementing G.O.P. control of the legislature, theoretically in perpetuity—at least until the election of Protasiewicz.
Dan Knodl, a Republican assemblyman who won a narrow race, in April, to fill a vacant seat in the state’s Senate, floated the idea of impeaching Protasiewicz even before she was elected. Knodl’s victory gave Republicans the supermajority they would need to convict her. But the next day, Devin LeMahieu, the majority leader in the Senate, shot down the idea of impeachment. “For impeachment to succeed, there has to be a serious crime, a misdemeanor, something like that, and it shouldn’t be used as a tool to overturn elections,” he told a reporter. On Thursday, though, LeMahieu appeared to be coming around. “We have a justice that has prejudged a case,” he said on TV. “She said the maps are rigged.”
State Democrats, meanwhile, are apoplectic about Protasiewicz’s potential removal. This week, Ben Wikler, the chair of the state’s Democratic Party, announced a four-million-dollar outreach campaign, called Defend Justice, to try to head off an impeachment. “This is a fundamental threat to the American system of government,” Wikler told me. “Essentially what Republicans are proposing to do is end judicial independence by sidelining or removing a judge based on their opposition to the decision that they think she would make. That has no precedent in the state of Wisconsin and would be a warning shot for every other judge in every other state. If Republicans do this, they will have created a new mechanism to short-circuit the judiciary.”
In a motion for Protasiewicz’s recusal, Republicans cite Caperton v. Massey, a 2009 case involving a recusal dispute in West Virginia. A justice on the state’s Supreme Court had cast the deciding vote in overturning liability damages owed by a coal company; the justice’s election campaign had been funded primarily by the company’s C.E.O. The U.S. Supreme Court ruled that, because there was a “serious risk of actual bias,” the justice was required to recuse himself. At the same time, Anthony Kennedy, writing for the majority, emphasized that the facts in the case were highly specific. “It was one of a kind,” Yablon, the law professor, told me. In the fourteen years since the decision, he hasn’t found a single state or federal court that has ruled against a judge for failing to recuse from a case in which a litigant supported a campaign financially.
Nevertheless, Republicans in Wisconsin—and one of Protasiewicz’s conservative colleagues on the court—have argued that, because Protasiewicz’s campaign received ten million dollars from the Democratic Party, she has a personal stake in the outcome of the two redistricting cases coming before the court. The Democratic Party, however, is not a petitioner in either one. (During the campaign, Protasiewicz promised to recuse herself from any case in which they were.)
Wisconsin has unusually lax recusal and campaign-finance rules, which were entirely crafted by Republican politicians and conservative justices. In 2007, when Chief Justice Annette Ziegler first ran for a seat on the court, Wisconsin Manufacturers & Commerce, the state’s largest business lobby, spent more than two million dollars on ads supporting her campaign. Despite calls for her to recuse herself from cases involving the organization, she has declined to do so. Two years after she was elected, W.M.C., along with the Wisconsin Realtors Association, drafted the court’s recusal language, which was adopted, verbatim, by the court’s conservative majority, including Ziegler. The rules explicitly state that judges who have received campaign contributions from a person or party involved in a case are not required to recuse themselves. (In 2008, Ziegler became the first sitting Supreme Court justice in the state’s history to be reprimanded by her colleagues for not recusing; as a circuit judge, she had presided over eleven cases involving a bank for which her husband was a board member.) In 2017, a panel of fifty-four retired state judges petitioned the court to tighten its recusal rules. Ziegler and the four other conservatives on the court ruled against the recommendations. By then, Republicans in the legislature, led by Robin Vos, had already gutted the state’s campaign-finance laws. Among the changes: political parties were now allowed to make unlimited donations to candidates for the state Supreme Court.
Critics of the effort to impeach Protasiewicz have noted additional instances of hypocrisy. Two of the three conservatives on the court have received financial support from the Republican Party; neither recused themselves from the redistricting case that established the “least-change” standard, despite its potential benefit to Republicans. According to the Wisconsin Democracy Campaign, a nonpartisan watchdog, a dark-money group called Wisconsin Alliance for Reform spent more than two million dollars supporting the election of the conservative justice Rebecca Bradley; Eric O’Keefe, who has been the treasurer of that group, was a named petitioner in the 2021 “least-change” case.
The recusal question has come up with regard to other issues, too. Wisconsin is currently operating under a law passed in 1849 that effectively bans nearly all abortions. Bradley has compared abortion to the Holocaust. Brian Hagedorn, another conservative justice on the court, once described Planned Parenthood as a “wicked organization more committed to killing babies than to helping women.” Both have rejected calls to recuse themselves from abortion cases. (A legal challenge to the 1849 law is expected to reach the court this term.)
The looming threat of Protasiewicz’s impeachment is the latest in a series of anti-democratic Republican interventions in Wisconsin’s civic infrastructure. Republican lawmakers have also enacted one of the strictest voter-I.D. laws in the country; stripped the governor and the attorney general of significant powers, during a lame-duck session, after those offices were won by Democrats; and sanctioned a sprawling and baseless taxpayer-funded investigation into the integrity of that election and the officials who administered it. Senate Republicans are attempting to oust Meagan Wolfe, the administrator of the Wisconsin Elections Commission. In August, Knodl held a hearing that featured a parade of election conspiracy theorists, including Peter Bernegger, a convicted felon (mail and bank fraud) and self-styled election expert who was recently warned by police that his behavior toward Wolfe “could be interpreted as ‘stalking’ under state law.” At the hearing, Bernegger said, “I don’t call for Meagan Wolfe’s ouster, I call for her arrest,” to loud applause.
Meanwhile, the gap between the G.O.P. and a majority of the Wisconsin electorate continues to widen. Since 2018, Republicans have lost fourteen of seventeen statewide races. No one appears angrier and more defiant than Vos, the most powerful Republican politician in state government. Vos, who was college roommates with Reince Priebus, one of Trump’s former White House chiefs of staff, joined the legislature in 2005 and rose to prominence a few years later by helping to pass Act 10, a law that demolished collective-bargaining rights for public employees in the state. He has been speaker for the past decade, during which he has earned a reputation for being an unrelenting partisan. (In 2019, he refused to allow a quadriplegic Democratic legislator to phone in to committee meetings.) After the 2020 election, Trump pressured him to initiate an investigation into the election. Still, Trump backed a fringe candidate in the 2022 primaries to run against Vos, who was nearly defeated.
Dale Schultz, a former Republican state senator and majority leader, told me that he is unsurprised by Vos’s latest effort to cling to power. Schultz, who belongs to a slice of the electorate that helped give Protasiewicz her eleven-point victory in an evenly divided state, fell out with Republicans after he refused to support Act 10 and cast the deciding vote against a law that would permit an enormous open-pit iron-ore mine in the state’s most pristine watershed. (It was later passed.) He eventually retired and went on to co-lead, with a Democratic former majority leader, a barnstorming effort for fair election maps. He is fatigued and repelled by his party’s fixation on power politics. “This is a desperate attempt to hang on to gains that were achieved by mechanically adjusting democracy,” he said.
What seems to dismay him most is the unwillingness of Republican lawmakers to challenge their leaders who are pushing the impeachment. “People are just paralyzed in the status quo,” he said. “There was a time in this state when people took enormous pride in their independence. They didn’t want to be ceding to other people their right to think for themselves—and their ability to do things for their constituents. Now I don’t know what we pay these birds for.” ♦