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The most expensive judicial election in US history isn’t really over in Wisconsin, where politicians worried about losing future cases are war-gaming ways to thwart the state Supreme Court, perhaps by kicking the newest justice off the bench.
Justice Janet Protasiewicz is the target of statehouse impeachment threats after stating her beliefs about abortion and gerrymandering instead of speaking in code or talking around issues that could come before the court.
She’s refused to recuse herself from a pair of political gerrymandering cases, leading Republicans to call for her removal.
Her saga, which appears unlikely to change the philosophical balance on Wisconsin’s highest court, could become either a warning or a model for the 22 states where voters elect high court justices.
“The genie is out of the bottle” for populist campaign messaging, said Heather Smith, a veteran Republican strategist based in Madison, Wis., and policy director of the free-market MacIver Institute. She opposes the shift but acknowledges candidates—and legislators with impeachment power—can’t ignore it.
Voters want to know exactly what to expect from a prospective judge, she said, pointing to a July Marquette University Law School poll that found a majority of liberal and independent respondents said justices should take public opinion into account when making decisions.
“You need to say where you stand on fundamental constitutional principles because you need to go there to motivate voters in a swing state,” said Gary Pearce, a Democratic veteran of North Carolina campaigns, said from Raleigh, N.C. “Say what it takes to win.”
Protasiewicz wasn’t subtle when discussing Wisconsin’s biggest political issue: abortion.
Her campaign spent more than $4 million in TV ads with at least 10 distinct spots touting her pro-abortion-rights stance or her opponent’s support of the state’s abortion ban, according to tracking firm AdImpact. Abortion also was the focus of ads aired by groups that supported Protasiewicz’s candidacy, helping the combined spending from all sides in the race top $40 million.
Her 11-point victory shifted the Wisconsin Supreme Court from conservative to liberal.
If the lawmakers calling for her to be removed before she rules on any cases get their way, it would be a first in US history, according to ethics scholars. Only one state judge—a Pennsylvania Supreme Court justice convicted of drug violations—has been impeached and removed in the last half-century.
Charles Geyh, a professor at Indiana University Law School in Bloomington, summed up the Wisconsin election aftermath in three words: “It’s a mess.”
“It’s a mess because judges are doing things that would historically disqualify them,” and “it’s a mess because legislators are trying to impeach judges for conduct not historically impeachable,” he said.
Here’s what’s been playing out in Madison:
- Wisconsin GOP leaders spent months holding hearings, culminating in calls to remove Protasiewicz, in part because she said GOP-drawn maps were “rigged.”
- An ethics commission rejected a complaint about that campaign rhetoric.
- Assembly Speaker Robin Vos (R) said impeachment would be a “last resort” avoidable with a new redistricting law to create a nonpartisan commission but leave ultimate line-drawing power with the state Legislature. Gov. Tony Evers (D) said he’d veto that proposal.
- Vos formed a secret panel to to look deeper into potential impeachment; the one panel member publicly known donated to Protasiewicz’s opponent.
- A group of liberal Protasiewicz backers sued to preemptively block her impeachment. The justices—with Protasiewicz recusing—denied the petition.
And getting rid of Protasiewicz wouldn’t necessarily make a difference in the long run, since Evers could immediately appoint another justice to preserve the liberal court majority.
If the state Senate stalled on a removal vote, an impeached judge could be suspended from the bench with no deadline for a resolution. Under that scenario, Protasiewicz could resign and let Evers install a replacement who wouldn’t face an election until 2031.
SCOTUS Has Spoken
In a 2001 decision, the US Supreme Court narrowed states’ ability to control judicial campaign speech on political issues of the day, with Justice Antonin Scalia writing that Minnesota’s limitations violated the First Amendment.
Protasiewicz’s general consultant for the campaign, Patrick Guarasci, said the candidate used a strategy applicable to all judicial elections: discussing things in a way that’s easy to understand, wile not crossing a “very bright important line” of saying how she’d rule.
“We shouldn’t penalize our candidates for judge for being honest,” said Guarasci, the founder of Milwaukee-based G Strategies. “Don’t we want them to speak the truth?”
Former North Carolina Supreme Court Justice Sam J. Ervin IV is an example of an old-school campaigner. He lost his re-election bid in 2022 after campaigning on fairness rather than on redistricting or any other hot topic.
In an interview, Ervin said his policy was to say nothing about pending cases except to explain procedural status, describing himself as “always concerned that something I might say would impact confidence in the courts.”
His campaign spent more than $500,000 running a spot showing Ervin holding a blank legal pad. “I start every case the same way. With a blank sheet of paper,” he said. “To me, this is what fairness looks like.”
On the same ballot, another losing candidate, former appeals court Judge Lucy Inman, had a similar campaign theme. Her campaign ad said that judges wear many hats but never a partisan “Make America Great” or “JOE” hat.
“When liberal jurists say, ‘I’m going to be fair and evenhanded,’ Democratic voters don’t get what that means,” said Pearce, the Democratic operative. In contrast, he said, Republican candidates describe themselves as conservatives, signaling to voters solidarity with GOP laws on abortion and other issues.
After last year’s US Supreme Court Dobbs decision that left abortion regulation to the states, and a 2019 decision leaving partisan gerrymandering in state courts’ hands, legislators’ calls to oust judges—using ethics as a sword—will increase because the policy stakes are so high, according to Douglas Keith of the left-leaning Brennan Center for Justice.
Lawmakers have discussed ousting judges in Ohio, Pennsylvania and North Carolina, pieces of a broader movement where state legislatures are becoming increasingly hostile to courts, changing jurisdiction, grouping circuits together, and now using ethics as “another political weapon to pressure or remove sitting judges,” Keith said.
“We don’t even know what a full cycle of state supreme court elections post-Dobbs looks like. But in many states, it will look like Wisconsin,” Keith predicted.
To contact the reporter on this story: Alex Ebert in Madison, Wisconsin at email@example.com