The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Slowing Down the Impeachment Drive in Wisconsin
An unusual move in an unusual impeachment
In a hotly contested election, the voters of Wisconsin flipped control of the state supreme court from the Republicans to the Democrats. The election of Janet Protasiewicz gave the liberal wing on the officially nonpartisan court a 4-3 majority. Protasiewicz won by a sizable margin in a contest widely understood to be about the future of abortion rights and legislative apportionment in the state.
Over the summer, Republicans in Wisconsin began to talk about impeaching the newly elected justice before she could sit on a case involving the current legislative maps. Republicans are demanding that the justice recuse herself from the apportionment case given her campaign statements about the existing maps and her receipt of large campaign donations from the Democratic Party. A failure to recuse would constitute the impeachable offense in the state proceedings.
Republicans have a large majority in the Assembly (the lower chamber), and just enough members in the state Senate to convict, if the GOP senators all stick together. The more interesting possibility is that the Assembly might impeach the justice and the Senate might delay a trial -- or fail to hold a trial at all. When Nancy Pelosi slow-walked the impeachment of President Donald Trump, there were no legal consequences. Not so in Wisconsin. In Wisconsin, like in many states, an impeached judge is immediately suspended from exercising the power of the office until the conclusion of an impeachment trial. The Republicans in the Wisconsin Assembly could prevent Protasiewicz from ruling on cases without ever testing whether Republicans could hold together through a senate trial and without forcing Senate Republicans to cast what is likely to be a politically difficult vote.
An impeachment purely for the sake of suspension would be an extreme case of constitutional hardball, and if Republicans in Wisconsin can get away with it partisans in other states are surely likely to think seriously about trying it themselves.
A Democratic attorney has filed suit in state court seeking an injunction against any possible impeachment.
Meanwhile, Assembly Speaker Robin Vos seems to be trying to slow down the impeachment train. He announced that he is appointing a panel of three former supreme court justices to write a report on the scope of the legislature's impeachment power. An extraordinary move that if nothing else puts off a decision on the impeachment question for the "next few weeks."
Extraordinary developments that will bear close watching.
