ICYMI: Former Wisconsin Supreme Court Justices, Legal Experts, Ethics Watchdogs, and Even Republicans Agree – Extremist Impeachment Plot is Meritless

MADISON, Wis. – Amid extremist Republicans’ unpopular and politically motivated threats to impeach newly elected state Supreme Court Justice Janet Protasiewicz, a growing chorus of voices including former Wisconsin Supreme Court Justices, legal experts, ethics watchdogs, and even Republicans, are speaking out against the scheme to overturn the results of the 2023 Spring court election. 

The public opposition of experts reflects the general public’s sentiment, too. A recent poll found the extremists’ outrageous plot is opposed by a stunning 24-point margin.

“We know from state-wide public polling that the impeachment threats against Justice Protasiewicz are extremely unpopular among Wisconsin voters,” said Mike Browne, deputy director of A Better Wisconsin Together. “Now, we also know that top legal experts from across the nation agree that impeaching Justice Protasiewicz is wrong.”

In addition to the insights of experts in law, former judges and even GOP politicians, allegations of impropriety made by extremist Republicans against Justice Protasiewicz have been dismissed by the Wisconsin Judicial Commission, which investigates complaints of violations of judicial conduct. 

The following are excerpts from some of the public comments and writings of high profile impeachment critics:

Former Wisconsin Supreme Court Justices Janine Geske, appointed by a Republican governor, and Louis Butler, appointed by a Democratic governor, wrote in a joint column that the extremist Republicans’ impeachment plot, “… would not only be inappropriate, but unconstitutional”. They further declare the politicians’ impeachment threat is “.. an attack on the court’s independence and the separation of powers that is guaranteed in our Wisconsin Constitution.” [Wisconsin State Journal, 9/21/23]

Retired Judge Richard Niess, who served on the Dane County Circuit Court for 16 years, wrote in a recent column that, “By threatening Justice Protasiewicz to coerce her compliance with their directives on how to rule in cases before the Court, the Republican legislators are actively working to convert our Supreme Court into a wholly-owned subsidiary of the Legislature. They are blowing up our system of checks and balances — indeed our democracy itself — to accomplish this end, the million-plus Wisconsin voters who chose Justice Protasiewicz be damned.” [Wisconsin Examiner, 9/7/23]

Retired Judge Sarah O’Brien, who served on the Dane County Circuit Court for 20 years, wrote in a letter to the editor that, “…if Vos would have Justice Protasiewicz recuse from the redistricting cases because she spoke to this issue, then all the remaining justices would also have to recuse. The Code of Judicial Ethics is the same for sitting justices and for candidates for the court. All of the sitting justices voiced their opinions on the Wisconsin maps when they decided Johnson v. Wisconsin Elections Commission in 2021. Vos’ argument has no merit.” [Wisconsin State Journal, 9/10/23]

Former Republican District Attorney Paul Bucher, who served as the elected DA of Waukesha County for 20 years was quoted declaring the impeachment scheme “absurd” and said, “This jump to impeachment, that’s just what we do today to people we don’t like in office.” [New York times, 9/6/23]

Former Republican State Senate Majority Leader Dale Schultz, noting the connection between the impeachment threat and Republican attempts to maintain the severely gerrymandered state legislative districts that have cemented their grip on power for over a decade commented, “This is a desperate attempt to hang on to gains that were achieved by mechanically adjusting democracy.” [The New Yorker, 9/10/23]  

University of Wisconsin Law School Associate Professor Robert Yablon, who also serves as Co-Director of the State Democracy Research Initiative (SDRI) and SDRI Senior Staff Attorney Derek Clinger wrote that, “The impeachment of a recently elected justice based on lawful campaign conduct and a legally grounded decision not to recuse would negate the people’s votes for Protasiewicz, striking a blow to the principle of judicial independence.” [Wisconsin State Journal, 9/16/23]

University of Wisconsin Law School Professor and Co-Director of the State Democracy Research Initiative (SDRI) Miriam Seifter noted, “Impeachment is not the mechanism for ordinary disagreements or even judicial discipline.” [Wisconsin Watch, 9/13/23]

Chad Oldfather, Marquette University Law School Professor of Law said the current effort by extremists to justify their overturning election results by an impeachment is, “… a difficult fit with the historical understanding of corrupt conduct in office.” [Bolts, 9/22/23]

Vikram David Amar, Distinguished Professor of Law, University of California Davis School of Law opined that, “[I]f a candidate violates principles of good judging and judicial ethics by giving his views on recurring legal issues of the day, why would not the same be true for the sitting Justices themselves who—in written public opinions and dissents—have stated their views on the very same issues in a past case? Would anyone seriously contend that these sitting Justices, who have spoken on an issue in a case, are thereby disqualified from participating in another case at a later time that presents the same or similar questions? Of course not.” [Verdict Justia, 9/26/23]

Norman Eisen a Senior Fellow in Governance Studies at the Brookings Institution, when asked about the underlying justification for impeachment responded, “Vos’s case for impeachment is weak and becomes even weaker upon reading the state’s constitution, which authorizes the legislature to impeach elected officials only for a narrow range of offenses … The GOP’s impeachment effort is completely unmoored from this legal standard. …” He concluded, “To put it simply, there is no reality in which Protasiewicz’s actions have met the impeachment standard.” [Milwaukee Journal Sentinel, 9/18/23]

Herbert Kritzer, Professor Emeritus at the University of Minnesota Law School noted, “I want to emphasize the irony that it was the Republican Party that pushed to allow judges to make clear their broad positions on these kinds of controversial issues…” [Associated Press, 9/17/23]

Doug Keith, Senior Counsel at the Brennan Center for Justice’s Judiciary Program concluded, “You are talking about a justice being impeached before hearing or deciding a case… This is not how impeachment has been used, or how I would expect it to be used.” [Bolts, 9/22/23]

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A Better Wisconsin Together is a state-based research and communications hub for progressives and is an affiliate of ProgressNow.