Here & Now

Zac Schultz on Strife Among Wisconsin Supreme Court Justices

Frederica Freyberg:

Turning to the Wisconsin Supreme Court, acrimony amongst justices has hit a fevered pitch in recent weeks. With the liberal wing newly in the majority, conservatives are expressing the sting of being in the 4-3 minority. There are actions causing the in-fighting like the liberal justices firing and replacing a court director. But the essential outrage for conservatives has to do with the fact that new liberal Justice Janet Protasiewicz was elected during a campaign where she said the current Republican legislative voting maps were “rigged” and “unfair.” Republicans want Protasiewicz to recuse from hearing a lawsuit over the maps and if she doesn’t, threaten to impeach her. A liberal law firm said in a court filing over the matter, “Unhappy with this electoral result which they could not prevent through gerrymandering, Republicans now seek to nullify the results and pick their justices.” This is just the latest Supreme Court dust-up in Wisconsin. A high court historically known as non-partisanship and collegial. When did it become a proxy for politics as usual? We turn to “Here & Now” senior political reporter Zac Schultz. Hi Zac.

Zac Schultz:

Hello Fred.

Frederica Freyberg:

The idea of impeaching a Supreme Court justice seems farfetched but given the Republican majority, maybe not. Where is this right now?

Zac Schultz:

Right now it is still in the land of threats and allegations and questions about how far this will go but it could get serious very fast. The Assembly Republicans can certainly be happy to present this. They could likely get this passed thru their chamber. Whether it would actually go all the way thru the Senate and have all 22 Republicans in the Senate vote to impeach seems questionable, more questionable than whether the Assembly can do it. But then there’s questions of what happens in the meantime. Even if there is impeachment charges brought forward, is that enough to throw enough chaos or slow down a process to mean that perhaps these redistricting maps that are being talked about, if the court takes the case, may not be in effect until after 2024, which is ultimately what Republicans would like to see happen. Delay any changes to the maps that give them their power.

Frederica Freyberg:

Indeed. We think of this as a major and possibly, an unseemly kind of fight with major implications but it is not the first trouble the court has spilled into the public eye.

Zac Schultz:

Absolutely not. This court has had a troubled history. I think it is fair to say, for at least the last 15 to 16 years. We had one justice accused of choking another justice inside the Capitol. That went all the way back up to the court of whether he should lose his seat in that case. So there have been all sorts of dustups and allegations. I think the difference here is the speed at which some of these allegations are coming out. Over the past few years, most of this kind of snide remarks and sniping at each other has been done in the footnotes of decisions. The major decision will come out and then a justice in their commentary will take a pot shot or two at someone else they think should have agreed with them or saying how they don’t actually understand the law or the Constitution. Now this is happening at the speed of email, and that’s in part because the speed of the change is so much faster. Conservatives on the court and Republican supporters out in the public want this information out faster. They are releasing it faster. Instead of happening in the background and then coming out slowly over the course of time, we are getting it almost as it happens.

Frederica Freyberg:

I said historically the court was known to at least project non-partisanship and collegiality, when did that change?

Zac Schultz:

I think a lot of election observers will look back to 2007. That’s when there was an open seat on the court. It was Linda Clifford as liberal and Annette Zeigler, the current chief justice, running as a conservative for that seat. That was coming off a period of time where some of the court’s decisions really made a political impact. One of those was the lead paint decision that allowed a lot of manufacturers of paint to be sued. They did not like that. In that race Wisconsin Manufacturers & Commerce, the conservative business lobby, dumped a ton of money into that race and the first time we saw real heavy hitter outside political groups put a political slant that heavy onto a race and really impact the final margin. And then it just went from there. The next year we saw justice — became Justice Gableman — Mike Gableman run one of the most racist ads in history in defeating Justice Louis Butler and since then, these races have become more proxies for the parties. Before that, you saw candidates almost keep the parties at arm’s length, saying we don’t want your help, we don’t want to be endorsed by you. Justice Prosser at one point told me he wasn’t a conservative Republican anymore but conservative judicial philosopher and that was after he was the Assembly Republican speaker so people really tried to keep their distance from parties. But over the last decade, if you want to win you need the party apparatus to fund those ads and to use to get out the vote operations door-to-door. That’s become more and more clear in every election since then.

Frederica Freyberg:

As to Justice Protasiewicz, the other major issue she campaigned on, of course, was abortion rights. Couldn’t the current recusal impeachment battle just repeat if she is not sidelined first?

Zac Schultz:

You could see that. I think one difference between the issue of redistricting and abortion is redistricting actually threatens the power of Republicans to keep their majority. If maps change, they will lose seats. Everyone knows this. They will lose seats in the Senate. They will lose seats in the Assembly. Whether they lose their majorities isn’t clear. It depends on the maps, but they will lose seats. They will lose power. If the abortion situation changes, there are some conservatives who will make an argument that’s actually better for them, taking that issue perhaps off the table. We’ve seen what the issue of abortion has done to energize independent women, young voters, and even some moderate Republicans over the last couple of years. There are a lot of Republicans in this building that will publicly say they don’t want to see any abortion at all in Wisconsin but privately, they would be very happy to see that be a non-factor. If the Supreme Court did that for them, they wouldn’t feel bad, as long as they get to keep their majorities.

Frederica Freyberg:

In Wisconsin’s Supreme Court, justices themselves now get to decide whether to recuse. How does that factor here?

Zac Schultz:

Well, it factors in that we don’t know, if there is an impeachment process coming forward, we don’t know where that will get stalled. More than likely, like everything else in the Capitol, there will be a lawsuit filed at some point in the process saying this isn’t legal. You don’t have the rights to do that. You don’t have the grounds to do that. There will be people trying to throw a wrench into that process before it could potentially take Justice Protasiewicz off the bunch. Well, if there is a court case, then it will go up to the court and eventually, it could be Protasiewicz herself deciding whether or not to recuse herself from a case that would reflect on her. We’ve seen that in the past. The conservative, now minority had options in the past to actually pass clear recusal rules and they declined. They always wanted it to be left up to individuals. Frankly, they have sat on plenty of cases that have involved their campaign donors and their supporters and people that have brought them through. Everyone in this building is connected to politics. Everyone who sits on the bench is connected to politics in one way or the other. While they sit in chambers, they want to be non-partisanship but that is not the reality of politics that surrounds them and engulfs them frankly in all these major decisions.

Frederica Freyberg:

Zac Schultz. Thanks very much. Appreciate it.

Zac Schultz:

Thanks Fred.