Wisconsin Republicans Call for Liberal Judge’s Recusal in Redistricting Case after She Called Maps ‘Rigged,’ ‘Unfair’

After spending months on the campaign trail calling Wisconsin’s Republican-drawn maps “rigged” and “unfair,” newly elected Wisconsin Supreme Court Judge Janet Protasiewicz is now declining to recuse herself from hearing a state legislative redistricting challenge that may well determine the balance of power in the Badger State in 2024. 

This legal challenge, which has largely flown under the radar in the national press in recent weeks, asks the court to hear two arguments: that the current state legislative lines are not contiguous, and that they violate the state constitution’s separation of powers doctrine. Protasiewicz sided with the Wisconsin Supreme Court’s liberal majority earlier this month to take up the case in a 4-3 vote. Three conservative-leaning justices dissented.

Lawyers working on behalf of Wisconsin’s Republican-controlled legislature are challenging the legality of Protasiewicz’s decision to hear the case, arguing that her comments on the campaign trail constitute prejudging the case and are grounds for her recusal. 

“A judicial candidate might end most stump speeches with ‘Justice for Judy!’ The First Amendment leaves her free to do so,” lawyers arguing on behalf of the Republican-controlled state legislature wrote in a September filing in support of the motion to recuse her. “But if she is elected and Judy’s appeal comes before her, she’ll face the question of recusal. So too here.”

Protasiewicz’s history of assailing the current Republican-drawn state legislative maps is well-documented. Speaking at a campaign forum back in January, she called the current maps “rigged,” according to the Milwaukee Journal Sentinel. “They do not reflect people in this state. I don’t think you could sell any reasonable person that the maps are fair,” Protasiewicz said at the forum in January, months before she was elected to the seat. “I can’t tell you what I would do on a particular case, but I can tell you my values, and the maps are wrong.”

A few months after she made those comments, Protasiewicz waltzed to victory in an off-year state supreme court election earlier this year that hinged mostly on abortion. With the help of millions in out-of-state spending, she ran heavily on pro-choice messaging and assailing the state’s Republican-drawn maps. She beat her conservative opponent Dan Kelly by eleven points — a stunning margin in Wisconsin, where statewide elections are often decided by tens of thousands of votes. She was officially sworn in in August, the same month the two redistricting cases were filed. The state supreme court threw one of them out, but decided to take up the other.

Republicans are crying foul. Wisconsin’s Republican State Assembly Speaker Robin Vos has even entertained the possibility of impeaching Protasiewicz for her refusal to recuse herself from the case, though no impeachment inquiry is imminent as of yet.

“All justices are expected to abide by the rules that govern their service on the Wisconsin Supreme Court,” Wisconsin Speaker Robin Vos said in a statement to National Review. “It is also the Assembly’s duty to provide oversight and accountability of state officials when appropriate, and the impeachment process is part of that oversight. We have made no decision yet but continue to evaluate the relevant facts.”

Meanwhile Democrats point to the Wisconsin Judicial Commission’s decision to dismiss judicial ethics complaints filed against Protasiewicz for comments she made about the maps on the campaign trail.

“The question is always about whether a judge or justice has made a commitment about a case about how they would rule, and Justice Protasiewicz also said over and over on the campaign trail that she would never prejudge a case,” Wisconsin Democratic Party Chairman Ben Wikler tells National Review. “So Justice Protasiewicz’s protected political speech — just like her conservative colleagues on the court — doesn’t provide any basis for even a judicial complaint.”