Bradley blasts Protasiewicz for not recusing in redistricting case

The state’s Supreme Court has ordered the Wisconsin Elections Commission to respond to a petition for the court to take original action on a case challenging the state’s redistricting maps, as conservative justice Rebecca Grassl Bradley denounced liberal justice Janet Protasiewicz for not recusing herself from the case.

In a withering dissent, Bradley also said the case itself was rigged — prejudged and pre-determined — using the very description that Protasiewicz has used about the redistricting maps themselves.

The petition asking the high court to take the case directly could have been accepted, or rejected. In this case, the court ordered the respondent, the Wisconsin Elections Commission, to file a response no later than August 22.

“Our standard approach when receiving a petition for original action is to allow the parties an opportunity to be heard,” justice Brian Hagedorn wrote. “Doing so here should give us a fuller picture of the issues in this case and from there we can determine how best to proceed.”

Bradley was the only dissenting vote, writing that the petition should simply be dismissed.

“The outcome of this original action has been predetermined,” Bradley wrote. “Nevertheless, the majority forces the parties to expend considerable resources — including taxpayer money — to respond to a petition everyone knows will be granted by Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz.”

In addition, Bradley said the millions of dollars Protasiewicz received during her campaign from the Democratic Party, which backs the lawsuit, poses a conflict of interest requiring the liberal justice to step aside.

“Despite receiving nearly $10 million from the Democrat Party of Wisconsin and declaring the maps ‘rigged,’ Protasiewicz has not recused herself from the case,” she wrote. “These four justices will adopt new maps to shift power away from Republicans and bestow an electoral advantage for Democrat candidates, fulfilling one of Protasiewicz’s many promises to the principal funder of her campaign.”

In Caperton v. Massey, Bradley wrote, the United States Supreme Court decided that due process required a state supreme court justice’s recusal from a case based solely on the justice’s receipt of $3 million dollars in campaign contributions from the chairman and principal officer of a party to the action.

“Consistent with universal judicial ethics, the justice in Caperton had not made any statements during his campaign suggesting he had prejudged the case,” she wrote. “This court adopted the Caperton test, holding that a circuit court judge’s repeated social media interactions with a litigant in a contested paternity case pending before the judge constituted a due process violation.”

In particular, the 2009 Caperton decision, written by justice Anthony Kennedy for the majority, found that significant contributions posed a risk of prejudgment.

“We conclude that there is a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent,” Kennedy wrote. “The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.” 

Beyond the recusal issue, Bradley wrote, the court should deny the petition without ordering a response because it re-litigates claims the court only recently decided, and asserts claims that could have been brought in 2021. 

“Only a change in court membership makes a do-over possible, as the litigants recognized by announcing their plan to file an original action just two days after Protasiewicz’s election and filing this petition one day after her ceremonial investiture,” she wrote. “Entertaining these claims makes a mockery of our justice system, degrades this court as an institution, and showcases that justice is now for sale in Wisconsin. ‘Rigged’ is indeed an apt description — for this case.”

Importantly, Kennedy and the majority did not find in Caperton that there had to be actual bias to require recusal, only the appearance of bias, or “a risk of actual bias.”

“Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this court does not question justice Benjamin’s subjective findings of impartiality and propriety and need not determine whether there was actual bias,” that decision stated. “Rather, the question is whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” 

To Assembly speaker Robin Vos the risk of bias was more than probable, and, last week, speaking in an interview with WSAU radio’s Meg Ellefson, he raised the possibility of impeaching Protasiewicz if she does not recuse herself on certain cases.

“If there’s any semblance of honor on the state Supreme Court left, you cannot have a person who runs for the court prejudging a case and being open about it, and then acting on the case as if you’re an impartial observer,” Vos told Ellefson.

Vos said he was taking a wait-and-see approach.

“I want to look and see, does she recuse herself on cases where she is prejudged?” he said. “That to me is something that is at the oath of office and what she said she was going to do to uphold the constitution. That, to me, is a serious offense.”

If Republicans get serious about impeachment, they have the votes to pull it off, if they can avoid defections. They only need a majority in the Assembly, which they have, and two-thirds to convict in the Senate, which they also have.

The fly in the ointment for Republicans is that, if Protasiewicz was impeached, Democratic Gov. Tony Evers would get to appoint her replacement.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.