Note: this first appeared in the “Life, Under Construction” newsletter from September 7. It was also featured in The “Morning Shots” newsletter by Charlie Sykes for The Bulwark on September 7. If you would like to receive the “Life, Under Construction” newsletter every Monday and Thursday, click here for subscription information.
Photo by James Wigderson

The Devil at Stirling Castle

Democracy Under Threat in Wisconsin

“The only thing that counts in the end is power! Naked merciless force!”

– General Ursus, Beneath the Planet of the Apes

Dear Readers,

I’m reminded of a Doonesbury cartoon from 1974. Garry Trudeau drew the White house being surrounded by the construction of a brick wall that covered up President Richard Nixon’s words to stonewall the investigation into Watergate. The wall, and protecting Nixon, became more important than the law.

We’re watching another wall being erected around our state Capitol. Instead of protecting the law or our rights as Wisconsin citizens, the wall is being built to protect the members of our legislature. Every last one of them is more precious than the will of the voters in the last Supreme Court election.

The Republican majority is giving serious consideration to the impeachment of newly elected state Supreme Court Justice Janet Protasiewicz if she even considers participating in hearing a lawsuit to overturn the state’s legislative boundaries. During the election, Protasiewicz had said the lines are “rigged” and that she looked forward to a possible review, while also stating she did not know how she would rule if a lawsuit were brought.

Right after Protasiewicz was sworn in, liberals filed such a suit and Republicans now find their carefully drawn district boundaries threatened.

Ironically, regardless of how the lines are drawn, it’s likely that the GOP would still maintain majorities in both legislative houses because of the compactness of the Democratic vote in Wisconsin. To undo the Republican gerrymander to yield a Democratic majority, the Democrats would have to pass a map with long spokes emanating from Milwaukee and Madison.

Photo by James Wigderson

Cannons at Stirling Castle

However, every seat is apparently precious enough that Wisconsin Republicans are willing to overturn the results of an election won by Protasiewicz by over 200,000 votes.

Worse, even though they have enough members in the Senate to vote to remove her, they could place Protasiewicz in judicial limbo instead. The Assembly could impeach her and then the Senate could delay a trial indefinitely. Once Protasiewicz is impeached, but not cleared by the Senate, she cannot participate in any court deliberations. And unlike if she was removed, Gov. Tony Evers could not appoint a replacement because there would be no vacancy to be filled.

If Protasiewicz decided to resign rather than linger in legal limbo, Evers could appoint a replacement. That person would not even need to be confirmed by the Senate. However, that person would then have to face the voters in the next Spring election that doesn’t currently have a sitting Supreme Court Justice already facing the voters. The next Spring election with no current members facing re-election is in April 2024, so we would have a do-over for an election that nobody desired except for Assembly Speaker Robin Vos (R-Rochester) and his Assembly colleagues.

The idea of impeaching Protasiewicz has picked up support from prominent Republicans, including Sen. Ron Johnson and former Gov. Scott Walker. “If she does not remove herself from the case, the members of the State Assembly should vote to impeach Justice Protasiewicz,” Walker told The New York Times.

Of course, in 2012 Walker had a different opinion on “do over” elections and removal from office. Democrats attempted to recall him over the passage of his Act 10 reforms. Despite Act 10 never becoming popular, Walker won re-election in the recall by a wider margin than his initial election in 2010. Wisconsin voters rejected the idea that someone should be removed from office over policy differences rather than actual corruption.

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Eleven years later, Wisconsin Republicans have an entirely different perspective. All that matters is power.

There was a time not that long ago when conservatives in Wisconsin defended the results of Supreme Court elections. Of course, that was when they were winning those elections.

For the Milwaukee Journal Sentinel in 2008, the state GOP’s unofficial consigliere Rick Esenberg wrote an op-ed defending the election of Wisconsin’s Supreme Court Justices over selection by an appointment process.

“Appointment doesn’t drive out politics; it just moves it from the campaign trail to the hearing room and, of course, the back room,” Esenberg wrote. “Although appointment for life may eliminate political concerns once a judge assumes the bench (at least if the judge doesn’t aspire to higher office), that impartiality comes at the price of a lack of accountability.”

Esenberg also said attempts to restrict what judicial candidates said on the campaign trail, as well as their supporters, would do more harm than good:

“If appointment turns out to present its own problems, a common fallback position of those disturbed by the tone of judicial elections is to embrace severe restrictions on campaign finance (generally a combination of public financing with severe limitations on third party spending) or a construction of the Judicial Code that severely restricts what candidates for judicial office may say.

“There are constitutional problems with these approaches. The U.S. Supreme Court has held that the First Amendment protects both robust debate in judicial elections and the right of groups concerned about issues to be heard at the time of an election.

“In any event, these approaches amount to a desire that judicial candidates shut up about philosophical differences for fear that they will not discuss them responsibly or that the public will not be able to understand them. The result, as with most campaign finance ‘reform,’ is incumbent protection.”

Republicans are now suddenly concerned about the things said by judicial candidates on the campaign trail, especially if those statements suggest Republican power should be challenged. But Wisconsin voters heard everything Protasiewicz said. They also heard the criticisms of her opponent, former Supreme Court Justice Dan Kelly. They still chose her.

Maybe the voters were wrong in choosing someone who espoused her personal views so openly. They may even regret it (I think they will). But it was their choice, and they made it with their eyes wide open.

Esenberg is now the president of the Wisconsin Institute for Law & Liberty, the leading conservative public interest law firm and public policy organization in Wisconsin. He was quoted in another op-ed in May, this time for the conservative think tank The Badger Institute, on why policy issues took such a prominent role in the last Supreme Court election.

“I’m always reminded,” Esenberg said, “of Justice Scalia’s comment that nobody was very much interested in us when they thought we were just doing lawyer’s work. But to the extent that major policy questions get shunted to the court — and it seems like they increasingly do — people are going to want to be heard on that.”

And the voters were heard – loudly. Protasiewicz’s victory was the result of record voter turnout for a Spring election, exceeding the 2020 election which coincided with the presidential primary in Wisconsin. Despite Protasiewicz’s broadcasting her personal opinions on issues such as abortion and redistricting, or perhaps because of her public stances, she defeated her opponent Kelly by a wider margin than he lost in 2020.

Kelly, however, was no virgin when it came to public policy positions. After he was defeated in 2020, Kelly served as an attorney guiding Republican legal strategy in the 2020 presidential election and even had a role in the fake elector scheme. Kelly was also openly pro-life and received the support of right-to-life groups and donors in the election. Kelly even expressed an opinion on Trump’s legal challenges to Wisconsin’s election results, saying the state Supreme Court should have heard Trump’s case.

Kelly even campaigned in the 2022 election by criticizing the independence of Justice Brian Hagedorn, who has disappointed Republicans by being a swing vote on the Court. Kelly told his supporters during the campaign he was sorry he supported Hagedorn’s election in 2019.

(Hagedorn, despite his Republican pedigree, has paid for his independence by receiving threats to himself and his family from MAGA Republicans.)

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Now Wisconsin Republicans are willing to throw away any pretense of a belief in an independent judiciary, the free speech rights of candidates, or in the right of the voters to decide the membership of the Supreme Court. Instead, it all comes down to defending the right of the legislature to pick and choose their voters, and not the other way around.

Sadly, we should not be surprised.

In 2020, Wisconsin Congressman Tom Tiffany signed onto a Texas lawsuit to try to disenfranchise Wisconsin’s voters in the presidential election. Wisconsin Republicans forced an unnecessary recount in the election, not to find more votes, but to disenfranchise voters in Milwaukee and Madison. Then they smuggled fake electors into the Capitol as part of Trump’s effort to disenfranchise Wisconsin’s voters and steal the election.

Meanwhile, Wisconsin’s conservatives on the state Supreme Court came within one vote of actually considering Trump’s challenge to the 2020 presidential election which would’ve thrown the country into chaos.

In 2021, Derrick Van Orden used congressional campaign funds to participate in the January 6 protests to try to overturn the 2020 presidential election. Tiffany and Rep. Scott Fitzgerald voted to throw out the results of the 2020 presidential election, and promised to do the same for Wisconsin’s results if given the opportunity. Johnson’s office also participated in the fake elector scheme and he publicly endorsed the idea of delaying the certification of the election.

Meanwhile, many members of the Republican legislature endorsed the idea of throwing out the election results and deciding the presidential election themselves. Vos actually appointed one of these legislators to chair the Assembly elections committee and then appointed former Supreme Court Justice Mike Gableman to “investigate” the 2020 presidential election.

In 2022, Johnson consulted with the legislature about having them decide the US Senate race in Wisconsin that fall when he ran for re-election. The GOP gubernatorial candidate, Tim Michels, said he would support overturning the 2020 presidential election results.

Now we’re in 2023. The only lesson Wisconsin Republicans seem to have learned from all of those failed efforts to undermine democracy is that they need to try harder.

James Wigderson, Waukesha, September 6, 2023


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