The Yin And The Yang Of Impeachment

Dan O’Donnell analyzes the competing schools of though on whether Assembly Republicans should impeach Justice Janet Protasiewicz

Sep. 6, 2023
Perspective by Dan O’Donnell

Assembly Republicans appear to be set on impeaching newly sworn in Wisconsin Supreme Court Justice Janet Protasiewicz over her refusal to recuse herself from hearing a case on the state’s electoral maps, but there are two schools of thought on whether this is a wise idea.

The dark, hard-charging yin of impeachment politics screams for Republicans to move forward, charge her in the Assembly, and then convict and remove her from office (they do, after all, control the requisite two-thirds Senate majority).  It’s precisely what Democrats would do if given the chance, right?

At the very least, impeachment would force her to recuse herself from the redistricting case as an ongoing impeachment proceeding would suspend her from all official duties and push the Court into a 3-3 conservative-liberal split.

In the short term, this would protect the Republican Legislature’s electoral maps, which were just upheld by the U.S. Supreme Court yet almost certain to be overturned by a Protasiewicz-led liberal majority in Wisconsin’s highest court.  The longer view, however, would prove to be the more prudent.

The brighter, more positive yang thinking on impeachment perhaps naively still believes in the rule of law and constitutional jurisprudence, but it is also correct in its legal interpretation: Protasiewicz hearing the redistricting case—though noxious and an affront to the notion of a fair judiciary—does not rise to the level of an impeachable offense.

Article VII, Section 1 of the Wisconsin Constitution limits impeachable conduct of public officials, including Supreme Court justices, to “corrupt conduct in office, or for crimes and misdemeanors.”  Protasiewicz’s refusal to recuse herself from the redistricting case would be a clear violation of the state’s Code of Judicial Conduct, but it would not rise to the somewhat exacting standard.

While campaigning for the Court, Protasiewicz repeatedly and very publicly said that Wisconsin’s legislative “maps are rigged.”

“When I say the maps are rigged, the maps are rigged,” she clarified, as if there could be any doubt as to whether she would strike down the Republican-drawn maps.

“Is it good politics?” has long ago trumped “does it set a good precedent?” on the left, and the right’s raging yin longs to live by the same standards.

This is about as blatant a violation of the Wisconsin Code of Judicial Conduct as could be imagined, as SCR 60.06(3)(b) provides that “a…candidate for judicial office shall not make…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 saying that “the maps are rigged,” Protasiewicz publicly committed herself to voting to strike down said maps as an unconstitutional gerrymander months before ever reading a brief or hearing an oral argument in a case that was brought before the Supreme Court just days after she was sworn in (with the obvious understanding that she would be the deciding vote to strike down the maps).

This is entirely inconsistent with the neutral administration of law and is thus a blatant violation of the Wisconsin Code of Judicial Conduct.  It is, however, not an impeachable offense under the standard laid out in the Constitution.  The Code of Judicial Conduct is not a criminal statute, and Protasiewicz’s obvious (and odious) violation of it is not a crime or misdemeanor.  It is ethically unconscionable, but then again Protasiewicz has never seemed like the type to care much about judicial ethics.

At this point, the yin would counter by arguing that this is exactly why impeachment is necessary—to enforce ethical behavior among the state’s most prominent and powerful jurists.

A judge’s decision to recuse, though, is personal and based on his or her own best judgment as to whether he or she can fairly and impartially hear a case in spite of preconceived biases.  Any impartial observer might come to the obvious conclusion that Protasiewicz could not possibly be fair in light of her past commitments, but the decision to recuse is hers and hers alone.  Never before has a decision not to recuse resulted in the end of a judicial career.

The more patient yang, though, may see the wisdom in maintaining the moral, legal, and constitutional high ground.

That’s all well and good, argues the yin, but Democrats are currently in the process of bringing criminal charges against their main political opponent in a direct attempt at interfering in an ongoing presidential election cycle.  Why should Wisconsin Republicans respond by playing under Marquess of Queensberry rules?  This is a knockdown, drag-out street fight and conservatives can no longer be afraid to pull out the occasional shank.

The yang would here respond that adopting the left’s standards ensures only that conservatives are contributing just as much to the collapse of the rule of law.

“What rule of law?” answers the yin.

Should Republicans move forward with impeachment, it would likely be unsupported by the Wisconsin Constitution, but America is now a post-constitutional state in which political power is the only governing authority.  Republicans could impeach Protasiewicz if they want to, they could keep her from sitting on the redistricting case (or any case, for that matter) if they want to, and they could remove her from office if enough Republican Senators want to.

“Is it good politics?” has long ago trumped “does it set a good precedent?” on the left, and the right’s raging yin longs to live by the same standards.  The more patient yang, though, may see the wisdom in maintaining the moral, legal, and constitutional high ground.

Ultimately the decision will be Assembly Republicans’ and Assembly Republicans’ alone. The rest of the state can only hope it’s the correct one.