A member of the secret panel studying Wisconsin Supreme Court justice’s impeachment backed her rival

One of the former Wisconsin Supreme Court justices tapped to investigate impeaching newly elected Justice Janet Protasiewicz for taking Democratic Party money accepted donations from the state Republican Party when he was on the court.

The former justice, Republican David Prosser, gave $500 to the conservative candidate who lost to Protasiewicz, did not recuse from cases involving a law he helped pass as a lawmaker and was investigated after a physical altercation with a liberal justice.

Prosser is one of three former justices tapped by the Republican Assembly speaker to investigate the criteria for taking the unprecedented step of impeaching a current justice. Speaker Robin Vos has floated impeachment because Protasiewicz accepted nearly $10 million from the Wisconsin Democratic Party and said during the campaign that heavily gerrymandered GOP-drawn legislative electoral maps were “unfair” and “rigged.”

The impeachment threat comes after Protasiewicz’s win this spring handed liberals a majority on the court for the first time in 15 years, which bolstered Democratic hopes it would throw out the Republican maps, legalize abortion and chip away at Republican laws enacted over the past decade-plus.

It also comes at the same time that Assembly Republicans passed a sweeping redistricting reform bill Vos described as an “off ramp” to impeachment and Senate Republicans voted to fire the state's nonpartisan elections director. Both moves take on heightened importance in Wisconsin, one of a handful of swing states where four of the past six presidential elections have been decided by less than a point.

Vos won’t say who he’s chosen for the secret, three-judge impeachment review panel, but Prosser confirmed to The Associated Press that Vos asked him to participate. None of the other eight living former justices, six of whom are conservatives, have told the AP they have been picked. Justices are officially nonpartisan in Wisconsin, but in recent years the political parties have backed certain candidates. Others, like Prosser, formerly served in partisan positions.

A former liberal justice, Louis Butler, said he was not asked. Four former conservative justices — Jon Wilcox, Dan Kelly, 7th U.S. Circuit Court Chief Judge Diane Sykes and Louis Ceci — told the AP they were not asked.

Ceci, 96, is the oldest living former justice. He served on the court from 1982 to 1993 and served one term as a Republican in the state Assembly in the 1960s.

Ceci, interviewed at his suburban Milwaukee home in a retirement high-rise, said he doesn’t know anything about the impeachment threats Protasiewicz faces beyond what he reads in newspapers. Vos has not approached him about serving on the panel, he said.

A seventh former justice, Janine Geske, told the Wisconsin State Journal she was not asked. Vos said former Justice Michael Gableman, whom Vos fired from leading an investigation into the 2020 election, was not on it.

The most recently retired justice, conservative Patience Roggensack, declined to comment to the AP.

“I can’t talk to you right now,” she said Thursday, adding that she was on her way to a college class before hanging up.

Roggensack and Prosser voted to enact a rule allowing justices to sit on cases involving campaign donors. In 2017, a year after Prosser left the court, Roggensack voted to reject a call from 54 retired justices and judges to enact stricter recusal rules.

Roggensack, in 2020, sided with the conservative minority in a ruling that fell one vote short of overturning President Joe Biden’s victory in the state. And she endorsed Dan Kelly, the conservative opponent to Protasiewicz in this year’s election. Prosser donated $500 to Kelly, who replaced Prosser on the court after he retired.

Prosser served on the Supreme Court from 1998 to 2016 and also spent 18 years before that as a Republican member of the Assembly — two years as speaker.

There were numerous times during Prosser’s years on the court where he did not recuse himself from cases involving issues he had voted on as a member of the Legislature.

Prosser did recuse himself from cases involving the constitutionality of a cap on medical malpractice damages because he was speaker of the Assembly when the cap was instituted. But in 2004 he changed course and authored the majority opinion upholding the law he helped pass. He dissented from a 2005 Supreme Court ruling overturning the law.

Prosser also refused a request to recuse in 2015 from considering three cases related to an investigation into then-Gov. Scott Walker and conservative groups that supported him. The groups in question had spent $3.3 million to help elect Prosser in 2011.

He defended hearing the cases, saying that because the money was spent four years earlier, enough time had passed to make them irrelevant.

Prosser then voted with the majority to shut down the investigation.

Prosser was also embroiled in one the court’s most contentious periods in 2011, accused by a liberal justice of attempting to choke her. Impeachment was never raised as a possibility, even though police investigated but no charges were filed. The Wisconsin Judicial Commission recommended the court discipline him but nothing happened because the court lacked a quorum when three justices recused.

In 2016, Prosser received $25,000 of in-kind contributions from the Wisconsin Republican Party. Less than three weeks later he resigned with nearly three years left on his term.

Vos said Prosser’s past wouldn’t affect his ability to fairly offer advice on how to proceed.

“First of all, all he is doing is giving advice on whether or not someone ought to recuse and the criteria for impeachment,” Vos said. “That has nothing to do with what happened before when he was on the Supreme Court.”

Prosser said the charge given to him by Vos was investigating “whether there’s a legitimate reason for impeaching” Protasiewicz.

When asked whether he thinks the panel should include liberals, Prosser said, “I’m really not going to answer that question.”

“I really don’t know what the process is going to be, who’s going to be doing the writing,” Prosser said. “I just really don’t know.”

No matter who is on the impeachment review panel, Democrats say the process is a joke.

“The entire concept of having a secret panel deliberating in secret to advise an Assembly speaker on an unconstitutional impeachment on a justice who has yet to rule on a case is a farce,” said Wisconsin Democratic Party Chair Ben Wikler. “This is a charade.”

Vos said impeachment may be warranted if Protasiewicz doesn’t step down from hearing two Democratic-backed redistricting lawsuits seeking to undo Republican-drawn legislative maps.

Vos argues that Protasiewicz has prejudged the cases. She never said how she would rule on any lawsuit.

Under the Wisconsin Constitution, impeachment is reserved for “corrupt conduct in office or for the commission of a crime or misdemeanor.”

It is up to each justice to decide whether recusal in a case is warranted, and the conservative majority of the court adopted a rule saying that justices don’t have to recuse if they accepted money from parties arguing a case. Other current justices have also been outspoken on hot-button issues before they joined the court and all but one have taken money from political parties.

When asked Thursday if the panel would include liberals, Vos dodged the question.

“I’m trying to have people who are respected as smart,” Vos said. “And I think that you will find very quickly that the people that we asked are both of those categories. Hopefully they come back to us with their recommendations so that the Legislature has even more good information to act on whether or not it’s required for us to proceed with some kind of impeachment proceedings."

To preserve gerrymandering, Wisconsin GOP threatens to impeach justice who critiqued gerrymandering

Wisconsin is so absurdly gerrymandered, a roughly 50-50 split between the state’s Republican and Democratic voters—Donald Trump edged out Hillary Clinton in 2016, President Joe Biden squeaked by Trump in 2020, and Badger Staters narrowly reelected Democratic Gov. Tony Evers in 2022—has somehow produced gaudy Republican supermajorities in both the state Assembly and Senate. The party currently holds a 64-35 advantage in the Assembly and a 21-11 edge in the Senate.

Of course, if Wisconsin Republicans had their druthers, they’d draw little circles around every Chick-fil-A in the state and make those congressional districts. And previous state supreme courts might have let them get away with it.

But when liberal Judge Janet Protasiewicz trounced her conservative opponent in the state Supreme Court election in April, it was a big win—not just for those who care about reestablishing their reproductive rights, but for anyone who genuinely cares about representative democracy.

In other words, fair legislative maps looked achievable for the first time in more than a decade. Which meant it was now past time for the GOP to squeal.

On Friday, Assembly Speaker Robin Vos hinted that impeachment could be on the table if Protasiewicz votes to disrupt the GOP’s plans for a permanent white minority rule over our country—or, worse, if Sen. Ron Johnson is ever forced to fill out his ballot next to a Black person. Why? Because she will have “prejudged” the case.

"If there's any semblance of honor on the state Supreme Court left, you cannot have a person who runs for the court prejudging a case and being open about it, and then acting on the case as if you're an impartial observer," Vos said during an interview with WSAU host Meg Ellefson when questioned about the durability of the Republicans’ bullshit maps. “You cannot have a judge who said, you know, the maps are rigged because she bought into the argument that that’s why we're winning elections, not the quality of our candidates, and then she sits on that trial acting like she's gonna listen and hear both sides fairly—that just can't happen.”

Okay, fine, but it’s kind of hard not to “prejudge” a gerrymandered map. Vos clearly has! Granted, he’s not a judge—and judges do need to rule on the particulars of individual cases without making snap, predetermined decisions, but in the storied history of easy calls, this one is right up there with the 1989 cancelation of “She’s the Sheriff.” 

Anyone who looks at the issue and can’t see what’s going on has no business working at a Pep Boys, much less serving as a supreme court justice. 

Consider this April story from The Atlantic, published shortly after Protasiewicz’s win flipped the state’s highest court to a 4-3 liberal majority:

After Democrats got wiped out in the 2010 midterms, Republicans gerrymandered Wisconsin with scientific precision—ensuring that in a state more or less evenly divided politically, the GOP would maintain its grip on power regardless of how the voters felt about it. Democrats would have to win by a landslide—at least 12 points, according to one expert—just to get a bare majority of 50 seats in the assembly, whereas Republicans could do so by winning only 44 percent of the vote. The U.S. Supreme Court has fueled a bipartisan race to the bottom on gerrymandering by invalidating every voter protection that comes before it, but even in today’s grim landscape, the Badger State is one of the standouts.

Wisconsin is a famously closely divided state, but thanks to their precise drawing of legislative districts, Republicans have maintained something close to a two-thirds majority whether they won more votes or not. With that kind of job security, Republicans in Wisconsin could enact an agenda far to the right of the state’s actual electorate, attacking unions, abortion rights, and voting rights without having to worry that swing voters would throw the bums out. After all, they couldn’t. And year after year, the right-wing majority on the state supreme court would ensure that gerrymandered maps kept their political allies in power and safely protected from voter backlash. Some mismatch between the popular vote and legislative districts is not inherently nefarious—it just happens to be both deliberate and extreme in Wisconsin’s case.

Nice racket, huh? In other words, Wisconsin’s liberals have been held hostage for years by unscrupulous Republicans who couldn’t care less about representative democracy. And this was years before the party as a whole decided it had no use for such quaint throwbacks

But that doesn’t mean Wisconsin Republicans are done being shameless partisans.

The Milwaukee Journal Sentinel:

In January, Protasiewicz called the state's legislative maps "rigged" in a public forum and in March, she told Capital Times reporters in a podcast interview she would "enjoy taking a fresh look at the gerrymandering question."

"They do not reflect people in this state. I don't think you could sell any reasonable person that the maps are fair," Protasiewicz, a former Milwaukee County judge, said in the January forum. "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."

Vos suggested if Protasiewicz does not recuse from cases involving the maps, she would violate her oath of office, which might push lawmakers to consider impeaching her.

"I want to look and see, does she recuse herself on cases where she has prejudged? That to me is something that is at the oath of office and what she said she was going to do to uphold the Constitution. That to me is a serious offense."

As The Journal Sentinel points out, Republicans now have the power to hold impeachment trials after having attained a supermajority in the state Senate—largely thanks to gerrymandered maps. And if they do, they could theoretically sideline Protasiewicz in order to protect those same maps.

An impeachment would prevent Justice Protasiewicz from hearing cases until & unless she is acquitted by the Wisconsin Senate. If the Senate drags its feet in holding a trial, that might be enough to leave gerrymandered maps in place for 2024. https://t.co/ifDTHoi9j0 pic.twitter.com/tknTlKAnJj

— Michael Li 李之樸 (@mcpli) August 12, 2023

As the above xweet from Brennan Center redistricting and voting counsel Michael Li explains, judges who’ve been impeached can’t even rule on cases until they’ve been acquitted. With Protasiewicz so sidelined if Republicans pull the trigger on impeachment, they could leverage a deadlocked 3-3 court to keep their maps (and minority rule) in place through 2024. 

Meanwhile, Democrats in the Wisconsin Assembly are understandably calling bullshit. 

"That type of reaction shows how threatened the Republican majority is by a challenge to their rigged maps,” Rep. Evan Goyke, a Milwaukee Democrat, told The Journal Sentinel. “It's really good evidence that the state is gerrymandered, that they'd be willing to go to such an unprecedented maneuver.”

Goyke also suggested that Protasiewicz would have to be dense, corrupt, or a Republican (three great tastes that taste great together) to not see how untenable the current maps are.

"I also think that Justice Protasiewicz is a live human being in Wisconsin and understands that we are living in this gerrymander," Goyke said. "I don't think that one comment invalidates her ability to serve."

Goyke further noted that Protasiewicz’s commanding 11-point victory in April is “a pretty clear mandate where the people stand.”

Sure, but since when do Republicans care where people stand?  They’re typically more interested in forcing them to sit still and take their medicine, whether they want to or not.

But as the Daily Kos Elections team points out in a great thread worth a read, that approach is only going to continue to blow up in GOP faces.

So what would the WI GOP do then? Keep impeaching until there are just two hardcore conservatives left? As we saw in Ohio, voters don't much like it when elected officials try to abrogate their rights. Scorched-earth tactics risk a major backfire for the GOP

— Daily Kos Elections (@DKElections) August 12, 2023

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