Conservatives target liberal state Supreme Court justices

As political fights become more contentious, issues like gerrymandering are coming before state supreme courts, turning once-overlooked questions about who sits on the bench into all-out political battles.

By Zac Schultz | PBS News Hour

September 21, 2023

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In Wisconsin and North Carolina, liberal state Supreme Court justices are facing potential impeachment and a judicial commission investigation, respectively — Geoff Bennett discussed the politics of state courts with Zac Schultz of PBS Wisconsin and Colin Campbell of WUNC.

PBS Newshour

By Geoff Bennett and Matt Loffman, PBS NewsHour

Geoff Bennett:
As political fights across the country become more contentious, key legal decisions over issues like gerrymandering are finding their way to state supreme courts that's turned once-overlooked questions about who sits on the bench into all-out political battles of their own.

In two states, liberal Supreme Court justices are under fire. In Wisconsin, Justice Janet Protasiewicz, less than two months into the job, is facing potential impeachment by the Republican-controlled legislature. And, in North Carolina, Justice Anita Earls, one of just two Democrats on the court, is being investigated by a judicial commission.

To discuss the politics at play in state courts, we're joined by Zac Schultz, who covers politics for PBS Wisconsin, and Colin Campbell, Capitol bureau chief for WUNC.

With a welcome to you both.

Zac, we should explain that, in Wisconsin, Republicans who are fighting to preserve the legislative electoral maps that they drew are arguing that Justice Protasiewicz has to recuse herself from this case. Where do things stand?

Zac Schultz, PBS Wisconsin:
Well, they're threatening impeachment, which is a process in Wisconsin for elected judges that we really haven't had to deal with in the last century-plus.

So it's completely new territory. The Assembly speaker, the leader of the Republicans for the Legislature, Robin Vos, says he's bringing in some former Supreme Court justices, some conservatives, to help give him some legal guidance as to what path may lay forward and whether any of the things that Janet Protasiewicz has said on the campaign trail last spring would rise to the level of warranting an impeachment process.

At the same time, he's also hedging some bets, and he's actually trying to advance a bill that would create a nonpartisan redistricting process here in Wisconsin based on the Iowa model. But Democrats are rejecting that call for right now, saying that the bill isn't close enough to the Iowa model to count, that there's little clauses.

They don't trust the Republicans, especially since, for the last decade-plus, Republicans have said, we don't need an Iowa model. We should write the bills ourselves.

Geoff Bennett:
So how likely is impeachment? And is there any concern that impeaching the justice would just infuriate Democrats and potentially independents and to have a blowback effect on Republicans in future elections?

Zac Schultz:
The likelihood of impeachment is anybody's guess.

We have already seen one Republican in the Assembly come out and say he would not vote for impeachment. We have seen of all-out campaigned by Democrats going after other Republicans that they think may be in districts that may be swingable. So there's absolutely the threat of blowback, especially if impeachment doesn't work and maps end up being rewritten that put some of those Republicans in much less favorable districts next year.

So there is a lot of calculating, like how far can they go? What should they do in this process? The real question is, if impeachment actually goes forward, there will be a lawsuit immediately filed saying it's invalid. And then that would go to the Supreme Court in Wisconsin.

And, in that case, Janet Protasiewicz would probably would recuse herself, because it would directly impact her in potential impeachment. So we could see all sorts of different tracks along these lines.

Geoff Bennett:
And, Colin, in North Carolina, the state Supreme Court Justice Anita Earls is suing a judicial oversight board that's investigating her for comments she made about the diversity of the state's judicial system.

Bring us up to speed.

Colin Campbell, Capitol Bureau Chief, WUNC:
Yes, so she made some comments a few months back to a judicial public legal publication raising some issues about the diversity in hiring in the court system, as well as a decision by the chief justice of the Supreme Court to do away with the Commission on Equity.

That has landed her in hot water with a group called the North Carolina Judicial Standards Commission that oversees the conduct of judges. It's led by Republican judges, and they are in the process of investigating her. She says the investigation infringes on her free speech rights. So she's taken this to a federal court, filed a lawsuit to block this investigation and disciplinary action from going forward.

But that's currently pending at the federal court level. The latest we have heard from that is the federal judge assigned to the case has accused both the standards commission and Justice Earls of being — quote — "inflammatory" in their accusations in the legal filings so far. So this is going to end up being a pretty spicy court battle as it goes forward.

Geoff Bennett:
And, Colin, if she were to be removed, how would that affect the makeup of the court and the potential outcomes of the cases coming before that court?

Colin Campbell:
Well, North Carolina's Supreme Court as of this year has a pretty strong Republican majority. It's 5 to 2. It was a Democratic majority last year. So that's why you're seeing some of this whiplash here in terms of the animosity on the court.

If she were to be removed, which is probably an unlikely scenario here, but certainly within the realm of possibility, she's going to get appointed — reappointed by — or replaced by the state's governor, who's currently a Democrat. And even if the state's governor were a Republican in the future and were to replace her, there's still a Republican majority for the next couple of election cycles before Democrats could take control of this court.

So a lot of it is more about sort of the chilling of speech and the animosity that occurs on the Supreme Court, more so than which party gets to be in control at this point.

Geoff Bennett:
Is there a precedent for this in North Carolina, Colin? Or is this the first time something like this has happened where a judge has been targeted, I guess, she would say, for previous comments like this?

Colin Campbell:
Yes, the Judicial Standards Commission, I think, has filed disciplinary action against a variety of judges.

This is the first time that I can recall that it's about comments that someone has made, a critique of the judicial system. They're arguing that she's violated a code of conduct that prevents judges from being able to say anything that impacts public confidence in the courts, which, of course, is a very vague piece of the judicial code of conduct.

And I don't think it's been used in this way, at least to my knowledge, up until now.

Geoff Bennett:
Zac, the last Supreme Court election in Wisconsin was the most expensive judicial race in that state's history, $45 million spent. It was incredibly contentious and partisan, even though it's technically, as I understand it, a nonpartisan election.

Has there been any talk of changing how judges are chosen in that state?

Zac Schultz:
It's a conversation that comes up almost every single Supreme Court election, and it's in the Constitution.

So it would require a constitutional amendment. And, right now, that process would require two consecutive legislatures passing that, and then a statewide referendum approving it. It's never even gotten to the point of the legislature introducing it, even when Democrats controlled the legislature more than a decade ago.

That's simply not going to happen. Most people say, as ugly as it can be, they still like the accessibility of judges to be directly elected by the people. But, over time, what that's meant is, the parties have gotten more and more involved at every step, and it's more difficult for any of these candidates to keep an arm's length away from the partisan process, despite it technically being nonpartisan.

Geoff Bennett:
Zac Schultz of PBS Wisconsin and Colin Campbell of WUNC in North Carolina, thanks to you both.

Colin Campbell:
Thanks a lot.

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