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Wisconsin Republicans talking about impeaching a state Supreme Court justice before she’s heard a case are pointing to the nearly $10 million she received from the Democratic Party as proof that she can’t fairly rule on redistricting cases that could weaken the GOP’s hold on the Legislature.
But the state GOP and other conservative groups have given campaign cash to other sitting justices, and they’re not recusing themselves on cases involving donors. All but one sitting justice — liberal Ann Walsh Bradley — have received contributions from a party at the national, state or county level, according to data from Wisconsin’s campaign finance system and an analysis by the Wisconsin Democracy Campaign, which tracks campaign spending.
Conservative Justices Brian Hagedorn and Rebecca Bradley have received contributions from the state Republican Party totaling roughly $150,000 and $70,000 respectively. The state Democratic Party has given liberal Justice Jill Karofsky’s campaign more than $1.3 million.
“It’s what I call selective outrage,” said Jay Heck, a longtime observer of the Wisconsin Supreme Court and director of Common Cause of Wisconsin, a nonpartisan government watchdog group. “It’s incredibly hypocritical.”
There was no outrage from Republicans when conservative justices heard numerous cases over the years involving their conservative donors, Heck said.
Republican Assembly Majority Leader Tyler August, when asked Thursday if he thought justices who have received money from the Republican Party should recuse themselves from the redistricting cases, tried to draw a distinction with Justice Janet Protasiewicz.
“She has clearly prejudged the case,” August said. “We’re talking about this case, this justice, and I’ll leave it at that.”
The attention on the Wisconsin Supreme Court follows a pattern of increasing scrutiny on state judges across the country.
State supreme court races have evolved into some of the most high-profile political contests during each election cycle, as they have become battlegrounds on abortion access, voting rights, redistricting and other hot-button issues. During the 2019-2020 election cycle, some $97 million was poured into state supreme court races, according to the Brennan Center for Justice. Thirty-three states will hold elections for seats on their high court in 2024.
In Wisconsin, there is no requirement that justices step down from hearing cases involving campaign donors.
Conservative majorities in the court approved rules allowing justices to hear cases involving their campaign donors in 2010 and rejected a request for clearer recusal standards in 2017.
Still, some Republicans point to the nearly $10 million that Protasiewicz received from the Wisconsin Democratic Party as a reason for her to step down from the redistricting cases. Some threaten possible impeachment if she doesn’t. Protasiewicz’s opponent, Dan Kelly, received more than $1.2 million from the Republican Party, mostly at the state level.
Wisconsin’s Republican-drawn maps, enacted in 2011 and then again last year with few changes, are widely seen as among the most gerrymandered in the country. Republicans have increased their majorities in the Legislature under the maps, even as Democrats have won statewide elections including President Joe Biden and Gov. Tony Evers in 2022.
None of the sitting justices immediately responded to an email sent to the court’s information director on Thursday asking whether they would recuse themselves from cases involving their campaign supporters. None of the justices recused themselves from redistricting cases last year.
Protasiewicz won the April election by 11 points. Her win gave liberals a majority on the court, boosting hopes among Democrats that it will overturn the state’s 1849 abortion ban and throw out the Republican legislative electoral maps.
She attended her first court hearing on Thursday, joining the other justices in asking questions of advocates pushing for a rule change affecting eviction records. She is scheduled to hear arguments in her first case before the court next week.
Days after she took office in August, Democratic-friendly groups filed two lawsuits asking the Supreme Court to toss out the Republican-drawn legislative maps.
GOP leaders quickly asked that Protasiewicz recuse herself, pointing both to the donations from the Democratic Party and to comments she made during the campaign that the maps were “unfair” and “rigged.”
Republicans argue that she has prejudged the case and can’t fairly hear it.
The same complaints against her were lodged during her campaign with the Wisconsin Judicial Commission, which investigates judges. That panel rejected the complaints.
Democrats pushed back against impeachment threats on Wednesday, announcing a $4 million public relations campaign against GOP members making them. Assembly Speaker Robin Vos, who has been the most outspoken advocate for possible impeachment, said the expensive campaign only further showed that Protasiewicz and the Democratic Party “are one and the same.”
If Protasiewicz doesn’t recuse, Vos argues, then Republicans will look into impeachment. Those threats were denounced by Wisconsin Democratic Party Chair Ben Wikler as “political extortion.”
The 2010 rule that allowed justices to hear cases involving their campaign donors was written in part by Wisconsin Manufacturers and Commerce, the state chamber of commerce. It had spent more than $2 million to help elect Chief Justice Annette Ziegler, who voted for the measure as part of a then-conservative majority on the court.
Three years earlier, Ziegler refused to recuse herself from a WMC-backed case in which she ultimately wrote a majority opinion resulting in hundreds of millions of dollars in business tax refunds. As a county judge, Ziegler had heard cases involving a bank where her husband was on the board and companies in which she held stock.
Conservative Justice Rebecca Bradley wrote the order in 2017 rejecting a call from retired judges to create a recusal standard for cases involving donors. She called the request “shocking in its disregard for the Wisconsin Constitution and the United States Constitution, particularly the First Amendment.”
But last month, she called out Protasiewicz for not recusing herself from the redistricting challenge. She also cited Democratic Party campaign donations and the campaign comments.
Bradley argued that the new liberal majority “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 promised during the campaign to recuse herself from any case brought by the Democratic Party because of the donations they had given her, even though Supreme Court rules don’t require that she do that. The Democratic Party did not bring either of the pending redistricting cases, even though Democrats would benefit from new maps being drawn.
“The rules and parameters of recusal were put in place by the conservatives and by the Republicans,” said Heck, with Common Cause. “If they don’t like the way the situation is now, all they have to do is look at their own behavior.”