A re-balanced Wisconsin Supreme Court meets a more dangerous Legislature

Don’t trust Republicans to use their new impeachment powers responsibly.

Wisconsin politics brings an abundance of bad policies, bad takes, and bad actors. In Capitol Punishments, we bring you the week’s highlights (or low-lights) from the state Legislature and beyond.

Judge Janet Protasiewicz’s landslide victory in a high-profile race for a Wisconsin Supreme Court seat was called before 9:30 p.m. on election night, April 4, sending a clear message that a) Wisconsinites wanted a rebalanced court to address gerrymandering and abortion and b) Dan Kelly is a uniquely terrible candidate.

But for me, the optimism was quickly tempered by state Rep. Dan Knodl’s (R-Germantown) election to the state Senate, giving Senate Republicans a two-thirds supermajority. While the powers of the Senate supermajority are somewhat limited because Republicans do not have a supermajority in the Assembly, it does beg the question of what Senate Republicans can or will do with this power.

For example, the Assembly only needs a majority vote to impeach an elected official for “corrupt conduct in office, or for crimes and misdemeanors,” per Article VII of the state constitution.

Knodl’s own statements about the Legislature’s impeachment powers were not reassuring: He told Upfront on WISN before the election that he would be open to removing Milwaukee County District Attorney John Chisholm and then-Milwaukee Circuit Court Judge Protasiewicz because he doesn’t think they are locking up enough people.

“The Milwaukee County justice system is failing, and that includes prosecutions,” Knodl said in the March 26 interview. “So D.A. Chisholm should be looked at. I’ve already called for his resignation. The judges, the circuit court judges, I think, have failed the community by releasing or not having a high enough bail on these criminals, the perpetrators. And so they need to be looked at. And Janet Protasiewicz, which is a circuit court judge right now in Milwaukee, and she has failed.”

Would Knodl and his colleagues go so far as to impeach Protasiewicz from her newly elected position on the Wisconsin Supreme Court? Some of the statements in this story from Wisconsin Watch that Tone Madison republished suggest that Wisconsin Republican strategists are certainly thinking about it.

Like Daniel Suhr, a Cedarburg lawyer who previously served in Republican Gov. Scott Walker’s administration, who told Wisconsin Watch’s Matthew DeFour: “Rather than saying her entire campaign approach was flawed to the point of impeachable, I think an alternative approach is to say, on this particular case, this particular topic, you cannot be impartial, or you certainly cannot appear impartial, which is the standard that the law sets.”

There’s the Sword of Damocles right there: Protasiewicz can sit on the court but if she doesn’t recuse herself from any cases where Republicans believe she isn’t “impartial”—gerrymandering and abortion, at the very least—then they can threaten her with impeachment.

Not that they cared about the blatant partisanship of the conservative justices who voted to throw out Milwaukee and Madison’s votes, in a failed attempt to overturn the 2020 election.

State Senate Majority Leader Devin LeMahieu (R-Oostburg) played good cop by telling WISN-TV, “we’re not going to use impeachments to overturn elections or anything like that.” The problem is LeMahieu’s track record.

One of his first statements as the new majority leader was that he would work with Gov. Tony Evers to come up with a COVID relief package (an effort that was sabotaged by Assembly Republicans), only to pretend that never happened in order to feed Assembly Speaker Robin Vos’s (R-Rochester) narrative that that lack of cooperation in the Capitol is Evers’ fault.

LeMahieu also coordinated with former Department of Natural Resources board member Fred Prehn to stay in his seat 20 months after his term expired. As other Walker appointees followed Prehn’s lead, LeMahieu announced the Senate would not hold any appointee confirmation hearings in 2022.

It’s easy for LeMahieu to play good cop against Vos and other outspoken members of his party. But it doesn’t matter whether he’s spineless or Machiavellian. The result is still the same: the party is following its most power-hungry, authoritarian impulses. It doesn’t matter that Protasiewicz won by such a wide margin in a purple state, or that certain laws and norms theoretically stand in the Legislature’s way. If she threatens their power, I have no doubt they will threaten hers. Maybe I, and anyone who agrees with me, are too cynical. But we should be prepared to be right, and hope against hope that we’re wrong.