Discover more from Morning Shots
The WI GOP’s Doomsday Plan for 2024
Removing a justice may have unintended consequences.
Whatever alarming things you have been hearing about Wisconsin, the reality is even worse.
Even though they have been on an extended losing streak, the state’s Republicans are seriously considering using their legislative majorities to kneecap the state’s top election official and overturn this year’s supreme court election.
That victory, in what was arguably the most consequential election of the year, gave progressives a 4-3 majority, with massive implications for abortion, redistricting, and how elections are run.
But now, top GOP leaders, led by Assembly Speaker Robin Vos, are threatening to impeach the newly elected justice, Janet Protasiewicz, before she has ruled on any case.
Removing a state supreme court justice would be a power play within a putsch inside a political blunder. The collateral damage will be staggering.
That should be obvious, and Speaker Vos is a smart politician. But it’s not clear that he can resist the temptation to take a dive that will set a dangerous precedent for the independence of the judiciary, destroy his reputation, and set off a chaotic and unpredictable chain reaction that could shift the outcome of the 2024 presidential election.
Morning Shots is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
This is how it might actually happen:
Under the Wisconsin Constitution it takes only a simple majority of the vote in the GOP-controlled State Assembly to impeach a justice (or any judge) “for corrupt conduct in office, or for crimes and misdemeanors.” This has happened only once before, in 1853 (the judge was acquitted).
But there is no allegation that Protasiewicz has engaged in any corrupt conduct (she took office only last month), and there are no crimes or misdemeanors. The GOP’s pretext is her refusal to recuse herself from a case challenging the state’s legislative gerrymandering. Protasiewicz has said that the current lines are “rigged,” and Republicans have accused her of prejudging the case. In an election that set records for turnout, voters seemed less concerned, electing her to a 10-year term by a margin of 11 points and more than 200,000 votes.
The recusal issue, however, is the hill on which the GOP intends to die, because they believe gerrymandered districts are the key to their hold on power in a state that is drifting blue.
On the surface, the whole thing seems both petty and pointless: If Protasiewicz is convicted by a two-thirds vote of the Wisconsin Senate and removed, Democratic Governor Tony Evers can immediately appoint another progressive justice to take her place. There is no Senate confirmation.
So, the whole nasty exercise would seem futile.
But here we get to the wrinkle that one law professor called “diabolical.”
Under the Wisconsin Constitution, after the Assembly vote, the justice would be immediately suspended. “No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal.”
But — and here’s the rub — the state’s Senate GOP has no intention of holding any trial, or taking any vote on the impeachment. There will be no conviction. Or acquittal.
As a result, Protasiewicz would be in a sort of permanent limbo. The court, which is already thoroughly dysfunctional, would be deadlocked 3-3.
“This is actually a more potent tool to dismantle the liberal majority by having an impeachment vote in the Assembly, which is just a majority vote, and then having the Senate do nothing. She basically is removed from office and can’t rule on any cases,” said David Canon, a political science professor at the University of Wisconsin-Madison.
This could set up another shambolic scenario.
If Protasiewicz resigns to let Evers restore the liberal majority, the new appointee would have to stand for re-election in the Spring 2024 election, setting up another high-stakes huge-dollar ideological clash.
This is where Speaker Vos and the GOP need to be careful what they wish for. They may trigger the nuclear option because of redistricting, but a new election would be about democracy, the rule of law — and abortion.
Last spring’s campaign was dominated by abortion. Wisconsin has a nineteenth-century law on the books that bans nearly all abortions, and its fate will be decided by the state’s high court. A 4-3 conservative court would have almost certainly have upheld the ban; while a 4-3 progressive court would almost certainly overturn it.
The race became a proxy referendum on abortion. And it wasn’t close.
So, a do-over post-impeachment vote would guarantee that abortion would be again the dominant issue in this key swing state throughout the presidential election year.
The electoral fallout may overshadow the even more dangerous precedent the impeachment would set for the independence of the courts: A bare partisan majority could remove any judge in any case at any time, pretty much for any reason.
That’s a weapon that would be unlikely to be used only once.
A bit of a backstory here. Conservatives have controlled the state’s high court for well over a decade, but have recently suffered a series of stunning defeats that culminated in this year’s court-flipping landslide.
In April, Protasiewicz defeated conservative Daniel Kelly by double digits after the most expensive judicial election in U.S. history. As you may recall, Kelly didn’t take it well. At all.
“I wish, in a circumstance like this, I would be able to concede to a worthy opponent,” Kelly said, “but I do not have a worthy opponent to which I can concede.”
“This was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts. It was truly beneath contempt.”
“My opponent,” he said. “is a serial liar. “She has disregarded judicial ethics. She has demeaned the judiciary with her behavior.”
“I wish Wisconsin the best of luck. I think it will need it.”
It’s really impossible to overstate the degree of political and personal animosity on the court. Elsewhere in today’s Bulwark, Bill Lueders reports on the vicious backbiting that has accompanied the shift in power.
“You are making a mess of the judiciary, the court and the institution for years to come. This must stop,” conservative Chief Justice Annette Ziegler informed her liberal colleagues in an August 28 email. “I have no confidence in the recent hostile takeover and the chaotic effect it has had on the court, staff, and the overall stable functioning of the courts.”
Ziegler is in a rage over the newly minted majority’s decisions to oust the state director of courts and to create a committee to handle some of the tasks that had been in the purview of the chief. In her view, this “is nothing short of an unprecedented coup.”
Justice Rebecca Dallet, a liberal, fired back. “Let me be crystal clear,” she wrote in an email to Ziegler. “The attempt to obstruct the proper business of the court and the furtherance of justice comes from you.”
The jihad against Protasiewicz is spearheaded by conservative colleague, Justice Rebecca Bradley, who has done little to disguise her bitterness over the April election.
Bradley, who is best understood as a member of the “John Eastman wing” of the court, accuses her liberal colleague of pre-judging the redistricting case.
In a blistering dissent to that order, Bradley called the case "predetermined" and pointed out the $10 million Protasiewicz received from the Democratic Party of Wisconsin, which Bradley called the "Democrat Party of Wisconsin."
Referring to the newfound 4-3 liberal majority, Bradley said, "These four justices 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."
Protasiewicz has said she would recuse herself from cases involving the state's Democratic Party, but the group isn't directly involved in either of the two cases seeking to redraw the state's legislative boundaries, which experts say are among the most gerrymandered in the country.
A festival of hypocrisy.
The question of recusal is not a new one for the court or for Justice Bradley.
The petition “asks us to infringe the First Amendment rights of the people of Wisconsin who wish to participate in judicial elections, either through supporting a candidate directly or speaking out on issues in a judicial race,” Bradley wrote in her opinion. “The people of Wisconsin, like everybody else in this country, have a First Amendment Right to do that. They have a First Amendment right to speak out in favor of the judges they support, and in opposition to the judges they oppose, without being penalized for exercising their free speech rights. . . . In my mind, this petition is somewhat shocking in its disregard for the Wisconsin Constitution and the United States Constitution, particularly the First Amendment.”
That was then. In something of an understatement, Ed Miller, a political science professor emeritus at UW-Stevens Point, and a longtime watcher of the Wisconsin Supreme Court, called Bradley’s stance on Protasiewicz’s recusal “inconsistent.”
“Often people think that the court is not a political body,” he wrote. “In fact, it is and always has been.”
Exit take: Stay tuned for more tomorrow....
1. Trump’s co-defendants are already starting to turn against him
In court documents and hearings, lawyers for people in Trump’s orbit — both high-level advisers and lesser known associates — are starting to reveal glimmers of a tried-and-true strategy in cases with many defendants: Portray yourself as a hapless pawn while piling blame on the apparent kingpin.
“History has shown the 18 co-defendants that Donald doesn’t care about anyone but himself,” said Michael Cohen, Trump’s former lawyer, referring to the 18 people charged alongside Trump in the Georgia election racketeering case.
“I suspect it will be every defendant for himself,” Cohen added.
2. Dear Linda Yaccarino
Claire Berlinski writing in the Cosmopolitan Globalist: Do you really want to be associated with the most vile public outpouring of antisemitism in American history?
Musk has turned all of Twitter into a giant engine for knowing what Musk is thinking, at all times. It’s inescapable. This means that every time Musk “likes” an antisemitic account, or replies, “concerning!” to one of its lunatic claims, some 140 million aimless, vague, discontented young men learn all about this fascinating theory that Jews secretly rule the world. Now, some of them live in countries where they’ve heard this all before, of course. Some of them have even heard it all before in America—and they’ve believed it, too. But how exciting it is to them that now, it’s mainstream. It’s all over Twitter! Elon Musk is letting us tell the truth, at last, about the Jews!
In the articles to which I linked above, the authors refer delicately to “antisemitic tropes.” That won’t do the job, I’m afraid. Saddle up, folks, because you have to see it to understand. What you see below is but a small sample of what I—and the whole world—saw the moment we opened the app and looked at the “Trending Topics.” It lasted for a good 72 hours.
In terms of cultural influence, you could say that “trending on Twitter” is what “being on the front page of The New York Times” used to be. Maybe. I don’t know how else to explain the significance of it. The point is that a massive number of young men were exposed—some of them, probably, for the first time—to the grand, unifying theory that explains everything wrong with the world. And those who already knew this will have found hundreds upon hundreds of new friends…