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The right-wing recusal fairy tale
"If you read Justice Rebecca G. Bradley’s dissent to taking this case, she invokes 'Alice in Wonderland,' but it is her dissent in which you do indeed go 'through the looking glass.'"
Guest column by Sachin Chheda
Late last week, the Wisconsin Supreme Court finally agreed to consider the constitutionality of our state’s legislative maps.
Although I have argued publicly for years the maps are rigged and unconstitutional because they are an extreme partisan gerrymander, the court reasonably recognized the process needed to find partisan gerrymandering requires a trial (as happened in the federal case in 2016), and said that kind of case needs to be filed in a local Circuit Court, not directly to the state Supreme Court.
But the Court is going to now consider two key issues — whether the current maps are sufficiently compact and contiguous, and whether or not a prior Court’s decision to impose these maps over a governor’s veto was constitutionally appropriate.
I’m probably going to address the substantive issues in a later essay, but here I want to focus on the thing everyone’s been talking about — the issue of when and why a justice should recuse.
I would be remiss not to note that Justice Protasiewicz’s order, a stunning and crystal-clear rebuke to those who called for recusal, points out she is following the law, and actually following the standard that right-wing justices, including three of her current colleagues, Justice Antonin Scalia, and secret-impeachment-panelist David Prosser have all supported and articulated.
If you read Justice Rebecca G. Bradley’s dissent to taking this case, she invokes Alice in Wonderland, but it is her dissent in which you do indeed go “through the looking glass.”
She makes an astonishing argument to newly impose a recusal standard — only on judges supported by progressives — which she and the other right-wing justices have fought bitterly against, and personally violated, over and over again, for more than a decade.
Let’s remember, the current recusal rule was written by Wisconsin Manufacturers & Commerce (WMC) and adopted by the right-wing justices. It is literally regularly referred to as the WMC recusal rule. It has allowed those same right-wing justices, including Rebecca Bradley, to rule in favor of WMC, in cases where WMC is a party, despite WMC directly investing millions and millions into right-wing justice campaigns.
Remember, WMC is the group that had to pull their negative ads because they falsely exploited a rape victim to try and elect Dan Kelly, Donald Trump’s Caped Crusader. These aren’t trustworthy folks.
But it gets even worse than that.
Current right-wing Chief Justice Annette Ziegler presided over 11 cases involving a bank where her husband was a member of the board. Ziegler was formally reprimanded for her handling of those cases, marking the first time the Wisconsin Supreme Court disciplined one of its own members.
During those very judicial disciplinary procedures, Ziegler was personally represented by attorney Jim Troupis. Wisconsin’s judicial ethics rules require judges to recuse themselves when they have a personal bias concerning a party’s lawyers. Yet in at least five later cases in front of the Supreme Court, including Trump v. Biden, Troupis was involved in the case, yet Ziegler never recused herself.
Here’s another example — Justice Brian Hagedorn was chief legal counsel to Gov. Scott Walker when the maps were first rigged. Then, Hagedorn stayed on the redistricting case last year, and ruled that the court should adhere to a made-up “least change” standard which baked in his own rigging from the decade before.
Also, Hagedorn described Planned Parenthood as a “wicked organization” dedicated to “killing babies,” described Roe v. Wade as “one of the worst and most unjustifiable decisions in history,” and said he had “committed himself” to stopping abortion. Despite these remarks, Hagedorn’s campaign said it “sees no reason to recuse himself (on abortion cases) as his personal views are irrelevant to his job as a judge.”
Hagedorn even refuses to guarantee that he will recuse himself from cases involving Act 10, despite his direct role in helping write the controversial law.
Now, has Rebecca Bradley suddenly become woke on recusal? If you can follow her logic, the right-wing majority’s rulings in case after case, for more than a decade, should now be considered corrupt and should be invalidated.
Let’s be clear: Justice Janet Protasiewicz said she agreed with a prior dissent — Rebecca Bradley quotes dissents all the time (usually her own) — said she’d enjoy working on redistricting cases, and made it clear she’d judge all cases on the merits, despite her personal views. That’s the expectation that Rebecca Bradley has for herself, but she thinks if you’re not an ardent follower of partisan far-right ideology, there should be different rules for you.
For weeks, far-right legislators have been arguing that Justice Janet Protasiewicz should adhere to a set of rules that Rebecca Bradley and Annette Ziegler have previously explicitly rejected. Now, in this case, because Justice Protasiewicz got contributions from a non-party to the case, and because she campaigned for the office to which she’s been elected — by double-digits, mind you — she apparently should step aside. That’s quite a flip-flop from Rebecca Bradley.
We can’t have a two-tiered system, where far-right justices can do whatever they want, ignore precedent willy-nilly (Roe v Wade, anyone?), and have no recusal standard at all, but then expect justices who get elected with progressive support face a completely different standard.
Make no mistake, Rebecca Bradley and her right-wing allies are as partisan as they come. They tried to overturn the 2020 election. They have made explicit promises on banning abortion. They imposed Robin Vos’ maps on the state over a gubernatorial veto when Vos didn’t have the votes to override.
We should react to their caterwauling here the same way we gently redirect a three-year old who wants one more souvenir at the end of a long day at Disney World. Their right-wing fantasies come from their overtired imaginations and it’s time to turn the page on this fairy tale.
Sachin Chheda spent a decade as director of the Fair Elections Project, and co-founded and chaired the Wisconsin Fair Maps Coalition, stepping down in 2022. He is widely considered one of Wisconsin’s foremost experts on gerrymandering. He also has ran or advised five campaigns for Supreme Court, including those of three current progressive-supported justices – Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz.
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Follow Dan Shafer on Twitter at @DanRShafer.