The Unethical Janet Protasiewicz

Dan O’Donnell takes aim at perhaps the most unethical Wisconsin Supreme Court candidate in recent memory—a liberal Milwaukee County judge who is openly and constantly violating the state’s Judicial Code of Conduct.

Jan. 18, 2023
Perspective by Dan O’Donnell

Make no mistake: Milwaukee County Circuit Court judge Janet Protasiewicz is the progressive in the Wisconsin Supreme Court race.  But don’t just accept that as an article of faith; let Janet herself tell you.

“In regard to the progressive label,” she explained, “I embrace that when it comes to issues such as gerrymandering, when we talk about the maps, when we talk about marriage equality, when we talk about women’s rights and women’s rights to choose.”

She is not a judge at all—not in any meaningful sense, anyway—she is an activist in a black robe instead of a Handmaid’s Tale costume.

Got that?  She is a progressive, especially on the issues that progressives care most about.  And of course, she has repeatedly assured them, she will be a reliable vote on cases in which those issues are before her.

“What I will tell you is that the [for] bulk of issues there’s no thumb on the scale, but I will also tell you that I’ll call them as I see them and I’ll tell you what my values are in regards to [the abortion] issue, because this issue is so critically important,” she said on “Capital City Sunday” this week.

If that sounds like she is promising to put her thumb on the scale in favor of “women’s rights to choose” should she hear an abortion case as a Supreme Court justice, it’s probably because she is.  The issue is, after all, “critically important.”  Don’t worry, though, on most other issues that aren’t quite as important to progressives like her, she will be fair and impartial.

But on the ones that matter, she won’t be.  She promises.

This is a major problem for her because while it will endear her to liberal voters, it represents a clear violation of Wisconsin’s Code of Judicial Conduct, which expressly provides that “a judge, candidate for judicial office, or judge-elect should not manifest bias or prejudice inappropriate to the judicial office.”

SCR 60.06(3) is even more direct: “A judge, judge-elect, or candidate for judicial office shall not make or permit or authorize others to make on his or her behalf, with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”

In plain English, this “prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court.”  A judge or judicial candidate may not “make any public comment that may reasonably be viewed as committing [him or her] to a particular case outcome.”

Protasiewicz very publicly and very openly committed herself to the “progressive” outcomes in cases involving electoral maps, marriage equality, women’s rights, and especially “women’s right to choose.” So important is this to her that she is perfectly willing to, as she herself admitted, put her thumb on the scales of justice to ensure her preferred political outcome.

And it wasn’t the first time in less than a week that she made this known for all to hear.  During a judicial candidate forum in Madison, she boldly declared that Wisconsin’s electoral “maps are rigged.”

“Let’s be clear here: The maps are rigged, bottom line, absolutely, positively rigged,” she said.  “They do not reflect the people in this state, they do not reflect accurately representation in either the State Assembly or the State Senate.  They are rigged, period.  I’m coming right out and saying that.”

In doing so, she openly and blatantly violated the Code of Judicial Conduct’s prohibition on outward expressions of bias or promises of a particular outcome in a case that is likely to come before the Wisconsin Supreme Court.  Should she win a seat on it, she would hear the inevitable challenge to new electoral maps drawn after the 2030 Census.  Is there any question how she would rule if those maps are at all similar to the ones currently in use?  Is there any question how she would rule on any maps drawn by Republicans?

That’s the point: She is promising Democrat voters that if elected, she will vote to strike down Republican-drawn maps and oppose any Republican restrictions on abortion.  Such promises of biased rulings based on political preferences and not the facts before the Court represent the worst possible violation of the Code of Judicial Conduct as they cut to the very heart of the concept of judicial ethics.

No matter what the abortion law actually says, Protasiewicz will strike it down. No matter how fairly Republicans draw their maps, Protasiewicz will always choose Democrats’ maps instead.  Without ever hearing an argument, without ever reading a brief, Janet Protasiewicz already knows how she will rule.

She will be a progressive first and a judge second.  Yet her blatantly unethical behavior makes her unfit for either the judicial office she currently holds or the one she now seeks.  She is not a judge at all—not in any meaningful sense, anyway—she is an activist in a black robe instead of a Handmaid’s Tale costume.

Merely voting against her, however, is not enough to send the message that her utter lack of ethics is thoroughly unacceptable.  Citizens must report her conduct to the Wisconsin Judicial Commission by downloading the form at this link, filling it out, and sending it in to demand an investigation into Protasiewicz’s behavior. 

This is not, as her defenders will undoubtedly insist, about an election.  It is about the nature of the judiciary itself.  If it is to be independent and non-partisan, then it can’t be filled with rank activists who make promises about future rulings in exchange for votes. 

It can’t, in other words, be filled with people like Janet Protasiewicz.