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Elections Are the Wrong Way to Pick State Supreme Court Justices

Wisconsin’s recusal controversy highlights the problems with electing judges.

October 11, 2023

Like many states, Wisconsin elects its supreme court justices. Usually, these races attract little attention outside of the state. But in April, Wisconsin had the most expensive and one of the most closely watched state judicial elections in U.S. history. The liberal candidate, Janet Protasiewicz, eventually secured an 11-point victory, flipping the direction of the state supreme court after 15 years of conservative control.  

Last week, the Wisconsin Supreme Court agreed to hear a challenge to the state’s heavily gerrymandered legislative maps, which were a major issue during the election. The legislature had filed a motion demanding that Protasiewicz recuse herself because, as a candidate, she called the maps “rigged” and said she would “enjoy taking a fresh look at the gerrymandering question.” Her campaign also accepted nearly $10 million from the state Democratic Party, which, according to the motion requesting recusal, creates a conflict of interest for Protasiewicz.

Protasiewicz refuses to recuse herself. In a lengthy written decision, she claimed that the Wisconsin Supreme Court would “grind to a halt” if justices had to recuse themselves anytime their participation in a case could “benefit non-parties who supported their campaign.” And, Protasiewicz went on, when she criticized the legislative maps as a candidate, she was expressing “personal values” — not pledging to vote one way or the other.

Over the past few months, Republicans in the legislature have threatened to impeach Protasiewicz if she participates in the case. It’s a particularly potent threat, because a vote by the state assembly to impeach Protasiewicz would bar her from hearing any case — including the gerrymandering challenge — until the state senate votes to convict or acquit her. Again, she would be impeached before she ever reached a ruling on this matter. 

One Republican who will not be supporting an impeachment effort, however, is Republican former Wisconsin State Assembly Speaker and State Supreme Court Justice David Prosser. Prosser has said that an impeachment under these circumstances “will be viewed as unreasonable partisan politics.” 

My colleague Alicia Bannon has a full analysis of the situation on State Court Report, the Brennan Center’s new website offering coverage and commentary on courts and constitutions in each of the 50 states.

We at the Brennan Center know well the complications of the Wisconsin mess. As I’ve documented in our Politics of Judicial Elections reports, formerly sleepy state judicial elections are becoming more expensive, more national, and more politicized. In the 2020 cycle alone, five states saw more than $10 million spent on their judicial elections, whereas no prior cycle had more than one state pass that mark. (The $51 million election that put Protasiewicz on the bench in 2023 makes that figure look quaint.)

As a result, we’ve recommended doing away with elections for state high court judges and replacing them with a publicly accountable process conducted by an independent nominating commission. We’ve also recommended updating judicial ethics rules to suit this new era of rough and tumble judicial politics.

But in the meantime, impeachment shouldn’t be used as a partisan tool to undo voters’ choice about the direction of the court. The impeachment of Janet Protasiewicz would not serve justice — it would be yet another strong-arm political move by people who were repudiated by voters.