Here & Now

Wisconsin's 2026 Supreme Court Race and the Issue of Recusal

Frederica Freyberg:
Elections for Wisconsin Supreme Court have become more expensive and more partisan than ever before. And while justices on the court are technically independent, they are easily sorted into liberal and conservative groups. That can create an appearance of bias in the eyes of some people and has led to an increase in the number of requests for justices to recuse themselves from a case. “Here & Now” senior political reporter Zac Schultz has more.

Janet Protasiewicz:
So that’s when I say yes, those maps are rigged.

Zac Schultz:
In 2023, Janet Protasiewicz ushered in a new era in Wisconsin Supreme Court elections by openly talking about her value while on the campaign trail. She called legislative maps passed by Republicans and adopted by the Supreme Court rigged. Since then, multiple lawsuits filed against those maps have come before the court, and each time lawyers representing the Republicans have asked Protasiewicz to recuse herself, resting part of their case on this very interview she conducted with us. Each time she said no, concluding the presumption of impartiality stands. I therefore deny the motion for my recusal.

Rob Yablon:
Recusal is important in the sense that it is part of this big picture notion that people are entitled to unbiased adjudicators.

Zac Schultz:
Rob Yablon is a professor at the UW Law School. Most judicial recusals come from a judge who’s already weighed in on a case, or who has a financial or personal relationship with one of the parties, but that doesn’t include campaign contributions or statements from the campaign trail.

Rob Yablon:
The expectation is that under the current rules, that judges and justices won’t step aside because of their discussions of issues or values on the campaign trail, or because of money they’ve received.

Zac Schultz:
Under the Wisconsin Supreme Court’s own guidelines, each justice decides for themselves if they should recuse. We asked the candidates in this Supreme Court election about their recusal standards.

Maria Lazar:
I follow the rules set by the U.S. Supreme Court as well as by the state of Wisconsin. I’ve had to look at different circumstances and decide when and how to recuse. And I always look at not only is it objectively, but subjectively biased. So if there’s an appearance of impropriety, then I will take a step back.

Chris Taylor:
I’m instructed by my ethical obligations to look at each case on a case-by-case basis and make sure that I can be fair and impartial. And that’s what I do every day.

Zac Schultz:
Two current cases have shown a new tactic in recusal requests. Former Supreme Court Justice Mike Gableman and lawyer Jim Troupis have each attempted to remove enough justices through recusal to change the makeup of the court that would hear their case. In 2020, Troupis represented the Trump campaign as they attempted to throw out more than 200,000 votes in Dane and Milwaukee Counties. In oral arguments, he sparred with Justice Jill Karofsky.

Jill Karofsky:
And what you want is you want us to overturn this election so that your king can stay in power and that is so un-American.

Zac Schultz:
Troupis lost that case, but at the same time, he was the lawyer behind Wisconsin’s false elector scheme, an effort to send an alternate slate of electoral votes to Washington, D.C. on January 6th. For that, he’s been charged by the Wisconsin attorney general with forgery, and Troupis claims all the judges in Dane County are biased and should recuse. His motions were rejected, and while appealing to the Wisconsin Supreme Court, he asked Justices Jill Karofsky and Rebecca Dallet to recuse based on their comments in the Trump v Biden case.

Mike Gableman:
My investigation is just that. An investigation into the extent to which elections in Wisconsin have been conducted in compliance with the law.

Zac Schultz:
Meanwhile, Gableman was hired to investigate Republican claims of fraud during the 2020 election. His investigation found no fraud, but it was determined he violated the open records law repeatedly.

Mike Gableman:
And under my firm belief that this judge has abandoned his role as a neutral magistrate and is acting as an advocate.

Zac Schultz:
And when in Dane County court, he insulted the judge and opposing counsel. A report by the Office of Lawyer Regulation found ten violations committed by Gableman, and he recommended he lose his law license for three years. Final action belongs to the Supreme Court, and Gableman has asked three different members to recuse themselves. Justices Protasiewicz and Karofsky said no. While Justice Crawford did recuse not because of Gableman’s request, but because she was a Dane County judge during his court case.

Rob Yablon:
My strong sense is that the volume of recusal requests that we’ve seen over the past year or two are more than we’ve ever seen before in Wisconsin, and the nature of those requests really tends to be quite political.

Zac Schultz:
Yablon says whether the recusal requests get justices to sit out the case or not, the request itself is a message to the public.

Rob Yablon:
Maybe the goal is actually to try to change the composition of the court in a way that you think will help you, but at the very least, it is an attempt maybe to raise some doubts about whether we should give credence to the legal decision that this body is issuing.

Zac Schultz:
Reporting from Madison, I’m Zac Schultz for “Here & Now.”